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/ 


The Constitutions 

OF THE 

United States 

AND OF THE 

State of Ohio 

1913 

Thoroughly Annotated and Indexed 


BY 


WM. HERBERT PAGE 

(Of the Columbus Bar, Professor of Law in the College of Law of The 
Ohio State University, and Author of Page & Adams Anno¬ 
tated General Code of Ohio, Page on Contracts, Page on 
Wills, Page & Jones on Taxation by Assessments) 


CINCINNATI 

THE W. H. ANDERSON COMPANY 
LAW BOOK PUBLISHERS 
1913 



Copyright, 1913, by 
THE W. H. ANDERSON COMPANY. 


©CI.A,‘543549 



CONTENTS. 


PAGES 

Declaration of Independence, 1776. i to 4 

Articles of Confederation, 1777. 5 to ii 

Constitution of the United States, 1787, and Amendments 

Thereto . 12 to 39 

Index to the Constitution of United States, 1787. 40 to 64 

Ordinance of 1787 . 65 to 72 

Constitution of Ohio, 1802. 73 to 107 

Index to Constitution of Ohio, 1802. 108 to 115 

Constitution of Ohio, 1851. 116 to 308 

Index to Constitution of Ohio, 1851. 309 to 328 


i ii 
















The Declaration of Independence^1776. 

IN CONGRESS, JULY 4, 1776. 

THE UNANIMOUS DECLARATION OF THE THIRTEEN UNITED STATES OF AMERICA. 


When in the Course of human events, it becomes necessary for one people 
to dissolve the political bands which have connected them with another, and 
to assume among the Powers of the earth, the separate and equal station to 
which the Laws of Nature and of Nature’s God entitle them, a decent respect 
to the opinions of mankind requires that they should declare the causes which 
impel them to the separation. 

We hold these truths to be self-evident, that all men are created equal, 
that they are endowed by their Creator with certain unalienable Rights, that 
among these are Life, Liberty and the pursuit of Happiness. That to secure 
these rights. Governments are instituted among Men, deriving their just powers 
from the consent of the governed. That whenever any Form of Government 
becomes destructive of these ends, it is the Right of the People to alter or 
to abolish it, and to institute new Government, laying its foundation on such 
principles and organizing its powers in such form, as to them shall seem most 
likely to effect their Safety and Happiness. Prudence, indeed, will dictate 
that Governments long established should not be changed for light and tran¬ 
sient causes; and accordingly all experience hath shown, that mankind are 
more disposed to suffer, while evils are sufferable, than to right themselves by 
abolishing the forms to which they are accustomed. But when a long train of 
abuses and usurpations, pursuing invariably the same Object evinces a design 
to reduce them under absolute Despotism, it is their right, it is their duty, to 
throw off such Government, and to provide new Guards for their future se¬ 
curity.—Such has been the patient sufferance of these Colonies; and such is 
now the necessity which constrains them to alter their former Systems of 
Government. The history of the present King of Great Britain is a history 
of repeated injuries and usurpations, all having in direct object the establishment 
of an absolute Tyranny over these States. To prove this, let Facts be submitted 
to a candid world. 

He has refused his Assent to Laws, the most wholesome and necessary for 
the public good. 

He has forbidden his Governors to pass Laws of Immediate and pressing 
importance, unless suspended in their operation till his Assent should be obtained; 
and when so suspended, he has utterly neglected to attend to them. 

He has refused to pass other Laws for the accommodation of large dis¬ 
tricts of people, unless those people would relinquish the right of Representation 
in the Legislature, a right inestimable to them and formidable to tyrants only. 

He has called together legislative bodies at places unusual, uncomfortable, 
and distant from the depository of their Public Records, for the sole purpose of 
fatiguing them into compliance with his measures. 

He has dissolved Representative Houses repeatedly, for opposing with 
manly firmness his invasions on the rights of the people. 



2 


THE DECLARATION OF INDEPENDENCE. 


He has refused for a long time, after such dissolutions, to cause others 
to be elected; whereby the Legislative Powers, incapable of Annihilation, have 
returned to the People at large for their exercise; the State remaining in the mean¬ 
time exposed to all the dangers of invasion from without, and convulsions within. 

He has endeavoured to prevent the population of these States; for that 
purpose obstructing the Laws for Naturalization of Foreigners; refusing to 
pass others to encourage their migration hither, and raising the conditions of 
new Appropriations of Lands. 

He has obstructed the Administration of Justice, by refusing his Assent to 
Laws for establishing Judiciary Powers. 

He has made Judges dependent on his Will alone, for the tenure of their 
offices, and the amount and payment of their salaries. 

He has erected a multitude of New Offices, and sent hither swarms of 
Officers to harass our People, and eat out their substance. 

He has kept among us, in times of peace. Standing Armies without the 
Consent of our legislature. 

He has affected to render the Military independent of and superior to the 
Civil Power. 

He has combined with others to subject us to a jurisdiction foreign to our 
constitution, and unacknowledged by our laws; giving his Assent to their acts 
of pretended Legislation: 

For quartering large bodies of armed troops among us: 

For protecting them, by a mock Trial, from Punishment for any Murders 
which they should commit on the Inhabitants of these States: 

For cutting off our Trade with all parts of the world: 

For imposing taxes on us without our Consent: 

For depriving us in many cases, of the benefits of Trial by Jury: 

For transporting us beyond Seas to be tried for pretended offences: 

For abolishing the free System of English Laws in a neighbouring Pro¬ 
vidence, establishing therein an Arbitrary government, and enlarging its Boun¬ 
daries so as to render it at once an example and fit instrument for introducing 
the same absolute rule into these Colonies: 

For taking away our Charters, abolishing our most valuable Laws, and 
altering fundamentally the Forms of our Government: 

For suspending our own Legislature, and declaring themselves invested with 
Power to legislate for us in all cases whatsoever. 

He has abdicated Government here, by declaring us out of his Protection 
and waging War against us. 

He has plundered our seas, ravaged our Coasts, burnt our towns, and de¬ 
stroyed the lives of our people. 

He is at this time transporting large armies of foreign mercenaries to 
compleat the works of death, desolation and tyranny, already begun with cir¬ 
cumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, 
and totally unworthy the Head of a civilized nation. 

He has constrained our fellow Citizens taken Captive on the high Seas 
to bear Arms against their Country, to become the executioners of their friends 
and Brethren, or to fall themselves by their Hands. 

He has excited domestic insurrections amongst us, and has endeavoured to 
bring on the inhabitants of our frontiers, the merciless Indian Savages, whose 
known rule of war-fare, is an undistinguished destruction of all ages, sexes and 
conditions. 

In every stage of these Oppressions We have Petitioned for Redress in 
the most humble terms: Our repeated Petitions have been answered only by 
repeated injury. A Prince, whose character is thus marked by every act which 
may define a Tyrant, is unfit to be the ruler of a free People. 



THE DECLARATION OF INDEPENDENCE. 


3 


Nor have We been wanting in attention to our Brittish brethren. We have 
warned them from time to time of attempts by their legislature to extend an 
unwarrantable jurisdiction over us. We have reminded them of the circum¬ 
stances of our emigration and settlement here. We have appealed to their 
native justice and magnanimity, and we have conjured them by the ties of our 
common kindred to disavow these usurpations, which, would inevitably interrupt 
our connections and correspondence. They too have been deaf to the voice of 
justice and of consanguinity. We must, therefore, acquiesce in the necessity, 
which denounces our Separation, and hold them, as we hold the rest of man¬ 
kind, Enemies in War, in Peace Friends. 

We, therefore, the Representatives of the united States of America, in 
General Congress, Assembled, appealing to the Supreme Judge of the world 
for the rectitude of our intentions, do, in the Name, and by Authority of the 
good People of these Colonies, solemnly publish and declare. That these United 
Colonies are, and of Right ought to be Free and Independent States; that they 
are Absolved from all Allegiance to the British Crown, and that all political 
connection between them and the State of Great Britain, is and ought to be 
totally dissolved; and that as Free and Independent States, they have full 
Power to levy War, conclude Peace, contract Alliances, establish Commerce, 
and to do all other Acts and Things which Independent States may of right do. 
And for the support of this Declaration, with a firm reliance on the Protection 
of Divine Providence, we mutually pledge to each other our lives, our Fortunes 
and our sacred Honor. 

JOHN HANCOCK. 


NEW HAMPSHIRE. 


JosiAH Bartlett, 

Matthew Thornton. 

Wm. Whipple, 

MASSACHUSETTS BAY. 

Saml. Adams, 

Robt. Treat Paine, 

John Adams, 

Elbridge Gerry. 


RHODE island. 

Step. Hopkins, 

William Ellery. 


CONNECTICUT. 

Roger Sherman, 

Wm. Williams, 

Sam'el Huntington, 

Oliver Wolcott. 


NEW YORK. 

Wm. Floyd, 

Frans. Lewis, 

Phil. Livingston, 

Lewis Morris. 


NEW JERSEY. 

Richd. Stockton, 

John Hart, 

Jno. Witherspoon, 

Abra. Clark. 

Eras. Hopkinson, 

PENNSYLVANIA. 

Robt. Morris, 

Jas. Smith, 

Benjamin Rush, 

Geo. Taylor, 

Benja. Franklin, 

James Wilson, 

John Morton, 

Geo. Clymer, 

Geo. Ross. 


DELAWARE. 

Caesar Rodney. 

Geo. Read, 

Tho. M’Kean. 



4 


THE DECLAKATION OF INDEPENDENCE. 


Samuel Chase, 

Wm. Paca, 

MARYLAND. 

Thos. Stone, 

Charles Carroll of Carrollton. 

George Wythe, 
Richard Henry Lee, 
Th. Jefferson. 

Benja. Harrison, 

VIRGINIA. 

Thos. Nelson, Jr., 

Francis Lightfoot Lee, 

Carter Braxton. 

NORTH CAROLINA. 

Wm. Hooper, 

Joseph Hewes, 

John Penn. 

SOUTH CAROLINA. 

Edward Rutledge, 

Thomas Lynch, Junr., 


Thos. Heyward, Junr., Arthur Middleton. 


Button Gwinnett, 
Lyman Hall, 

GEORGIA. 

Geo. Walton. 


Note.— Mr. Ferdinand Jefferson, Keeper of the Rolls in the Department of 
State, at Washington, says: “The names of the signers are spelt above as in 
the fac-simile of the original, but the punctuation of them is not always the 
same; neither do the names of the States appear in the fac-simile of the original. 
The names of the signers of each State are grouped together in the fac-simile of 
the original, except the name of Matthew Thornton, which follows that of Oliver 
Wolcott.” 



Articles of Confederation—1777. 


To all to whom these Presents shall come, we the undersigned Delegates of the 
States affixed to our Names send greeting. 

Whereas the delegates of the United States of America in Congress assem¬ 
bled did on the fifteenth day of November in the Year of our Lord One Thou¬ 
sand Seven Hundred and Seventy-seven, and in the Second Year of the Independ¬ 
ence of America agree to certain articles of Confederation and perpetual Union 
betvi^een the States of Newhampshire, Massachusetts-bay, Rhodeiisland and 
Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, 
Delaware, Maryland, Virginia, North-Carolina, South-Carolina and Georgia in 
the Words following, viz. 

Articles of Confederation and perpetual Union between the States of Newhamp¬ 
shire, Massachusetts-bay, Rhodeisland and Providence Plantations, Con¬ 
necticut, New-York, New Jersey, Pennsylvania, Delazvare, Maryland, Vir¬ 
ginia, North-Carolina. South-Carolina and Georgia. 

Article I. The stile of this confederacy shall be “The United States of 
America.” 

Article II. Each State retains its sovereignty, freedom and independence, 
and every power, jurisdiction and right, which is not by this confederation 
expressly delegated to the United States, in Congress assembled. 

Referred to: Railway v. State, 11 O. C. C. (N.S.) 482, 21 O. C. D. 20 [affirming State 
V. Railway, 7 O. N. P. (N.S.) 541, 19 O. D. (N.P.) 285, and affirmed in Railway v. State, 
82 O S. 60]. 

See Woodruff v. Parham, 75 U. S. (8 Wall.) 123; Legal Tender Case, 110 U. S. 421. 

Article III. The said States hereby severally enter into a firm league of 
friendship with each other for their common defense, the security of their 
liberties, and their mutual and general welfare, binding themselves to assist 
each other, against all force offered to, or attacks made upon them, or any of 
them, on account of religion, sovereignty, trade, or any other pretence whatever. 

Minor v. Happersett, 88 U. S. (21 Wall.) 162. 

Article IV. The better to secure and perpetuate mutual friendship and 
intercourse among the people of the different States in this Union, the free 
inhabitants of each of these States, paupers, vagabonds and fugitives from 
justice excepted, shall be entitled to all privileges and immunities of free citizens 
in the several States; and the people of each State shall have free ingress and 
regress to and from any other State, and shall enjoy therein all the privileges 
of trade and commerce, subject to the same duties, impositions and restrictions 
as the inhabitants thereof respectively, provided that such restrictions shall not 
extend so far as to prevent the removal of property imported into iny State, to 
any other State of which the owner is an inhabitant; provided also that no 
imposition, duties or restriction shall be laid by any State, on the property of the 
United States, or either of them. 

Passenger Cases, 48 U. S. (7 How.) 283; Scott v. Sanford, 60 U. S. (19 How.) 393; 
Woodruff V. Parham, 75 U. S. (8 Wall.) 123. 


5 



Art.V. 


6 

ARTICLES OP CONFEDERATION. 


If any person guilty of, or charged with treason, felony, or other high mis¬ 
demeanor in any State, shall flee from justice, and be found in any of the 
United States, he shall upon demand of the Governor or Executive power, 
of the State from which he fled, be delivered up and removed to the State 
having jurisdiction of his offense. 

Full faith and credit shall be given in each of these States to the records, 
acts and judicial proceedings of the courts and magistrates of every other State. 

Article V. For the more convenient management of the general interests 
of the United States, delegates shall be annually appointed in such manner as 
the legislature of each State shall direct, to meet in Congress on the first Mon¬ 
day in November, in every year, with a power reserved to each State, to recall 
its delegates, or any of them, at any time within the year, and to send others in 
their stead, for the remainder of the year. 

No State shall be represented in Congress by less than two, nor by more 
than seven members; and no person shall be capable of being a delegate for 
more than three years in any term of six years; nor shall any person, being a 
delegate, be capable of holding any office under the United States, for which he, 
or another for his benefit receives any salary, fees or emolument of any kind. 

Each State shall maintain its own delegates in a meeting of the States, and 
while they act as members of the committee of the States. 

In determining questions in the United States, in Congress assembled, each 
State shall have one vote. 

Freedom of speech and debate in Congress shall not be impeached or ques¬ 
tioned in any court, or place out of Congress, and the members of Congress 
shall be protected in their persons from arrests and imprisonments, during the 
time of their going to and from, and attendance on Congress, except for treason, 
felony, or breach of the peace. 

Article VI. No State without the consent of the United States in Con¬ 
gress assembled, shall send any embassy to, or receive any embassy from, or 
enter into any conference, agreement, alliance or treaty with any king, prince 
or state; nor shall any person holding any office of profit or trust under the 
United States, or any of them, accept of any present, emolument, office or title 
of any kind whatever from any king, prince or foreign state; nor shall the 
United States in Congress assembled, or any of them, grant any title of nobility. 

No two or more States shall enter into any treaty, confederation or alliance 
whatever between them, without the consent of the United States in Congress 
assembled, specifying accurately the purposes for which the same is to be entered 
into, and how long it shall continue. 

No State shall lay any imposts or duties, which may interfere with any 
stipulations in treaties, entered into by the United States in Congress assembled, 
with any king, prince or state, in pursuance of any treaties already proposed 
by Congress, to the courts of France and Spain. 

Passenger Cases, 48 U. S. (7 How.) 283; Woodruff v. Parham, 75 U. S. (8 Wall.) 123. 

No vessels of war shall be kept up in time of peace by any State, except such 
number only, as shall be deemed necessary by the United States, in Con¬ 
gress assembled, for the defence of such State, or its trade; nor shall any body 
of forces be kept up by any State, in time of peace, except such number only, 
as in the judgment of the United States, in Congress assembled, shall be deemed 
requisite to garrison the forts necessary for the defence of such State; but 
every State shall always keep up a well regulated and disciplined militia, suf¬ 
ficiently armed and accoutered, and shall provide and constantly have ready 
for use, in public stores, a due number of field pieces and tents, and a proper 
quantity of arms, ammunition and camp equipage. 



7 

ARTICLES OF CONFEDERATION. 


Art. VII. 


No State shall engage in any war without the consent of the United States 
in Congress assembled, unless such State be actually invaded by enemies, or 
shall have received certain advice of a resolution being formed by some nation 
of Indians to invade such State, and the danger is so imminent as not to 
admit of a delay, till the United States in Congress assembled can be con¬ 
sulted : nor shall any State grant commissions to any ships or vessels of war, 
nor letters of marque or reprisal, except it be after a declaration of war by the 
United States in Congress assembled, and then only against the kingdom or 
state and the subjects thereof, against which war has been so declared, and 
under such regulations as shall be established by the United States in Congress 
assembled, unless such State be infested by pirates, in which case vessels of 
war may be fitted out for that occasion, and kept so long as the danger shall 
continue, or until the United States in Congress assembled shall determine 
otherwise. 

Article VII. When land-forces are raised by any State for the common 
defence, all officers of or under the rank of colonel, shall be appointed by the 
Legislature of each State respectively by whom such forces shall be raised, or 
in such manner as such State shall direct, and all vacancies shall be filled up 
by the State which first made the appointment. 

Article VIII. All charges of war, and all other expenses that shall be 
incurred for the common defence or general welfare, and allowed by the United 
States in Congress assembled, shall be defrayed out of a common treasury, 
which shall be supplied by the several States, in proportion to the value of all 
land within each State, granted to or surveyed for any person, as such land and 
the buildings and improvements thereon shall be estimated according to such 
mode as the United States in Congress assembled, shall from time to time 
direct and appoint. 

The taxes for paying tha^- proportion shall be laid and levied by the 
authority and direction of the Legislatures of the several States within the 
time agreed upon by the United States in Congress assembled. 

Ware v. Hylton, 3 U. S. (3 Dali.) 199. 

Article IX. The United States in Congress assembled, shall have the 
sole and exclusive right arid power of determining on peace and war, except 
in the cases mentioned in the sixth article—of sending and receiving ambas¬ 
sadors—entering into treaties and alliances, provided that no treaty of com¬ 
merce shall be made whereby the legislative power of the respective States 
shall be restrained from imposing such imposts and duties on foreigners, as 
their own people are subjected to, or from prohibiting the exportation or 
importation of any species of goods or commodities whatsoever—of establishing 
rules for deciding in all cases, what captures on land or water shall be legal, 
and in what manner prizes taken by land or naval forces in the service of the 
United States shall be divided or appropriated—of granting letters of marque 
and reprisal in times of peace—appointing courts for the trial of piracies and 
felonies committed on the high seas and establishing courts for receiving and 
determining finally appeals in all cases of captures, provided that no member 
of Congress shall be appointed a judge of any of the said courts. 

Waring v. Clarke, 46 U. S. (5 How.) 441; Woodruff v. Parham, 75 U. S. (8 Wall.) 123. 

The United States in Congress assembled shall also be the last resort on 
appeal in all disputes and differences now subsisting or that hereafter may 
arise between two or more States concerning boundary, jurisdiction or any 
other cause whatever; which authority shall always be exercised in the manner 
following. Whenever the legislative or executive authority or lawful agent 
of any State in controversy with another shall present a petition to Congress, 



Art.IX. 


8 

ARTICLES OF CONFEDERATION. 


stating the matter in question and praying for a hearing, notice thereof shall 
be given by order of Congress to the legislative or executive authority of the 
other State in controversy, and a day assigned for the appearance of the parties 
by their lawful agents, who shall then be directed to appoint by joint consent, 
commissioners or judges to constitute a court for hearing and determining the 
matter in question: but if they can not agree. Congress shall name three persons 
out of each of the United States, and from the list of such persons each party 
shall alternately strike out one, the petitioners beginning, until the number shall 
be reduced to thirteen; and from that number not less than seven, nor more than 
nine names as Congress shall direct, shall in the presence of Congress be drawn 
out by lot, and the persons whose names shall be so drawn or any five of them, 
shall be commissioners or judges, to hear and finally determine the controversy, 
so always as a major part of the judges who shall hear the cause shall agree 
in the determination: and if either party shall neglect to attend at the day 
appointed, without showing reasons, which Congress shall judge sufficient, 
or being present shall refuse to strike, the Congress shall proceed to nominate 
three persons out of each State, and the Secretary of Congress shall strike 
in behalf of such party absent or refusing; and the judgment and sentence of 
the court to be appointed, in the manner before prescribed, shall be final and 
conclusive; and if any of the parties shall refuse to submit to the authority of 
such court, or to appear or defend their claim or cause, the court shall neverthe¬ 
less proceed to pronounce sentence, or judgment, which shall in like manner 
be final and decisive, the judgment or sentence and other proceedings being in 
either case transmitted to Congress, and lodged among the acts of Congress 
for the security of the parties concerned: provided that every commissioner, 
before he sits in judgment, shall take an oath to be administered by one of the 
judges of the supreme or superior court of the State where the cause shall be 
tried, “well and truly to hear and determine the matter in question, according to 
the best of his judgment, without favour, affection or hope of reward:” pro¬ 
vided also that no State shall be deprived of territory for the benefit of the 
United States. 

KJaode Island v. Massachusetts, 37 U. S. (12 Pet.) 657; Missouri v. Illinois, 180 U. S. 208. 


All controversies concerning the private right of soil claimed under dif¬ 
ferent grants of two or more States, whose jurisdiction as they may respect 
such lands, and the States which passed such grants are adjusted, the said 
grants or either of them being at the same time claimed to have originated 
antecedent to such settlement of jurisdiction, shall on the petition of either 
party to the Congress of the United States, be finally determined as near as 
may be in the same manner as is before prescribed for deciding disputes 
respecting territorial jurisdiction between different States. 

The United States in Congress assembled shall also have the sole and exclu¬ 
sive right and power of regulating the alloy and value of coin struck by their 
own authority, or by that of the respective States.—fixing the standard of 
weights and measures throughout the United States.—regulating the trade and 
managing all affairs with the Indians, not members of any of the States, pro¬ 
vided that the legislative right of any State within its own limits be not 
infringed or violated—establishing and regulating post-offices from one State 
to another, throughout all the United States, and exacting such postage on the 
papers passing thro’ the same as may be requisite to defray the expenses of the 
said office—appointing all officers of the land forces, in the service of the 
United States, excepting regimental officers—appointing all the officers of the 
naval forces, and commissioning all officers whatever in the service of the 
United States—making rules for the government and regulation of the said 
land and naval forces, and directing their operations. 

Worcester v. Georgia, 31 U. S. (6 Pet.) 515. 



y 

ARTICLES OF CONFEDERATION. 


Art.IX. 


The United States in Congress assembled shall have authority to appoint 
a committee, to sit in the recess of Congress, to be denominated “a Committee 
of the States,” and to consist of one delegate from each State; and to appoint 
such other committees and civil officers as may be necessary for managing the 
general affairs of the United States under their direction—to appoint one of 
their number to preside, provided that no person be allowed to serve in the 
office of president more than one year in any term of three years; to ascertain 
the necessary sums of money to be raised for the service of the United States, 
and to appropriate and apply the same for defraying the public expenses—to 
borrow money, or emit bills on the credit of the United States, transmitting 
every half year to the respective States an account of the sums of money so 
borrowed or emitted,—to build and equip a navy—to agree upon the number of 
land forces, and to make requisitions from each State for its quota, in pro¬ 
portion to the number of white inhabitants in such State; which requisition 
shall be binding, and thereupon the Legislature of each State shall appoint 
the regimental officers, raise the men and cloath, arm and equip them in a 
soldier-like manner, at the expense of the United States; and the officers and 
men so cloathed, armed and equipped shall march to the place appointed, and 
within the time agreed on by the United States in Congress assembled: but if 
the United States in Congress assembled shall, on consideration of circum¬ 
stances judge proper that any State should not raise men, or should raise a 
smaller number than its quota, and that any other State should raise a greater 
number of men than the quota thereof, such extra number shall be raised, 
officered, cloathed, armed and equipped in the same manner as the quota of 
such State, unless the Legislature of such State shall judge that such extra 
number can not be safely spared out of the same, in which case they shall 
raise, officer, cloath, arm and equip as many of such extra number as they 
judge can be safely spared. And the officers and men so cloathed, armed and 
equipped, shall march to the place appointed, and within the time agreed on 
by the United States in Congress assembled. 

I.eg:a] Tender Case, 110 U. S. 421; Scott v. Sanford, 60 U. S. (19 How.) 393. 


The United States in Congress assembled shall never engage in a war, nor 
grant letters of marque and reprisal in time of peace, nor enter into any 
treaties or alliances, nor coin money, nor regulate the value thereof, nor ascer¬ 
tain the sums and expenses necessary for the defence and welfare of the United 
States, or any of them, nor emit bills, nor borrow money on the credit of the 
United States, nor appropriate money, nor agree upon the number of vessels of 
war, to be built or purchased, or the number of land or sea forces to be raised, 
nor appoint a commander in chief of the army or navy, unless nine States 
assent to the same: nor shall a question on any other point, except for adjourn¬ 
ing from day to day be determined, unless by the votes of a majority of the 
United States in Congress assembled. 

The Congress of the United States shall have power to adjourn to any time 
within the year, and to any place within the United States, so that no period 
of adjournment be for a longer duration than the space of six months, and 
shall publish the journal of their proceedings monthly, except such parts thereof 
relating to treaties, alliances or military operations, as in their judgment require 
secresy; and the yeas and nays of the delegates of each State on any question 
shall be entered on the journal when it is desired by any delegate; and the dele¬ 
gates of a State, or any of them, at his or their request shall be furnished with a 
transcript of the said journal, except such parts as are above excepted, to lay 
before the Legislatures of the several States. 




Art.X. 


10 

ARTICLES OF CONFEDERATION. 


Article X. The Committee of the States, or any nine of them, shall be 
authorized to execute, in the recess of Congress, such of the powers of Congress 
as the United States in Congress assembled, by the consent of nine States, shall 
from time to time think expedient to vest them with; provided that no power 
be delegated to the said committee, for the exercise of which, by the articles 
of confederation, the voice of nine States in the Congress of the United States 
assembled is requisite. 

Article XL Canada acceding to this confederation, and joining in the 
measures of the United States, shall be admitted into, and entitled to all the 
advantages of this Union: but no other colony shall be admitted into the same, 
unless such admission be agreed to by nine States. 

Downes v. Bidwell, 182 U. S. 244. 

Article XII. All bills of credit- emitted, moneys borrowed and debts con¬ 
tracted by, or under the authority of Congress, before the assembling of the 
United States, in pursuance of the present confederation, shall be deemed and 
considered as a charge against the United States, for payment and satisfaction 
whereof the said United States, and the public faith are hereby solemnly pledged. 

Article XIII. Every State shall abide by the determinations of the United 
States in Congress assembled, on all questions which by this confederation are 
submitted to them. And the articles of this confederation shall be inviolably 
observed by every State, and the Union shall be perpetual; nor shall any alter¬ 
ation at any time hereafter be made in any of them; unless such alteration be 
agreed to in a Congress of the United States, and be afterwards confirmed by 
the Legislatures of every State. 

And whereas it has pleased the Great Governor of the world to incline the 
hearts of the Legislatures we respectively represent in Congress, to approve of, 
and to authorize us to ratify the said articles of confederation and perpetual 
union. Know ye that we the undersigned delegates, by virtue of the power 
and authority to us given for that purpose, do by these presents, in the name 
and in behalf of our respective constituents, fully and entirely ratify and con¬ 
firm each and every of the said articles of confederation and perpetual union, 
and all and singular the matters and things therein contained: and we do 
further solemnly plight and engage the faith of our respective constituents, 
that they shall abide by the determinations of the United States in Congress 
assembled, on all questions, which by the said confederation are submitted to 
them. And that the articles thereof shall be inviolably observed by the States 
we re[s]pectively represent, and that the Union shall be perpetual. 

In witness whereof we have hereunto set our hands in Congress. Done at 
Philadelphia in the State of Pennsylvania the ninth day of July in the 
year of our Lord one thousand seven hundred and seventy-eight, and in 
the third year of the independence of America. 


On the part & behalf of the State of New Hampshire. 


JosiAH Bartlett, 


John Wentworth, Junr., 
August 8 th, 1778 . 


On the part and behalf of the State of Massachusetts Bay. 


John Hancock, 
Samuel Adams, 
Eldridge Gerry, 


Francis Dana, 
James Lovell, 
Samuel Holten. 


On the part and behalf of the State of Rhode Island and Providence Plantations. 


William Ellery, 
Henry Marchant, 


John Collins. 



11 

ARTICLES OF CONFEDERATION. 


Art.X. 


On the part and behalf of the State of Connecticut. 

Roger Sherman, Titus Hosmer, 

Samuel Huntington, Andrew Adams. 

Oliver Wolcott, 

On the part and behalf of the State of New York. 

Jas. Duane, Wm. Duer, 

Fra. Lewis, Gouv. Morris. 

On the part and in behalf of the State of New Jersey, Novr. 26, 1778. 

Jno. Witherspoon, Nathl. Scudder. 

On the part and behalf of the State of Pennsylvania. 

Robt. Morris, William Clingan, 

Daniel Roberdeau, Joseph Reed, 22d July, 1778 

JoNA. Bayard Smith, 

On the part & behalf of the State of Delaware. 

Tho. M’Kean, Feby. 12, 1779. Nicholas Van Dyke. 

John Dickinson, May 5th, 1779. 

On the part and behalf of the State of Maryland. 

John Hanson, March i, 1781. Daniel Carroll, Mar. i, 1781. 

On the part and behalf of the State of Virginia. 

Richard Henry Lee, Jno. Harvie, 

John Bannister, Francis Lightfoot Lee. 

Thomas Adams, 

On the part and behalf of the State of No. Carolina. 

John Penn, July 21st, 1778. Jno. Williams. 

Corns. Harnett, 

On the part & behalf of the State of South Carolina. 

Henry Laurens, Richd. Hutson, 

William Henry Drayton, Thos. Heyward, Junr. 

Jno. Mathews, 

On the part & behalf of the State of Georgia. 

Jno. Walton, 24th July, 1778. Edwd. Lang worthy. 

Edwd. Telfair, 





Constitution of the United States—1787 


We THE People of the United States, in Order to form a more perfect Union, 
establish Justice, insure domestic Tranquility, provide for the common 
defence, promote the general Welfare, and secure the Blessings of Liberty 
to ourselves and our Posterity, do ordain and establish this Constitution 
for the United States of America. 

Minor v. Happersett, 88 U. S. (21 Wall.) 162. 


ARTICLE 1. 

Section 1. All legislative Powers herein granted shall be vested in a 
Congress of the United States, which shall consist of a Senate and House of 
Representatives. 

Dodge. V. Woolsey, 59 U. S. (18 How.) 331, 3 O. F. D. 300; United States v. Harris, 
106 U. S. (16 Otto) 629; In re Neagle, 135 U. S. 1; Field v. Clark, 143 U. S. 649; State v. 
Russell, 20 O. C. C. 551, 11 O. C. D. 299. 

Section 2. ^ The House of Representatives shall be composed of Members* 

chosen every second Year by the People of the several States, and the Electors 
in each State shall have the Qualifications requisite for Electors of the most 
numerous Branch of the State Legislature. 

Minor v. Happersett, 88 U. S. (21 Wall.) 162; Ex parte Yarbrough, 110 U. S. 651; 
In re Green, 134 U. S. 377; McPherson v. Blacker, 146 U. S. 1; Pope v. Williams, 193 
U. S. 621. 

State V. Russell, 20 O. C. C. 551, 11 O. C. D. 299. 

^ No person shall be a Representative who shall not have attained to the 
Age of twenty-five Years, and been seven Years a Citizen of the United States 
and who shall not, when elected, be an Inhabitant of that State in which he 
shall be chosen. 

Boyd V. Nebraska, ex rel., 143 U. S. 135; United States v. Wong Kim Ark, 169 
U. S. 649. 

Representatives and direct Taxes shall be apportioned among the several 
States which may be included within this Union, according to their respective 
Numbers, which shall be determined by adding to the whole Number of free 
Persons, including those bound to Service for a Term of Years, and excluding 
Indians not taxed, three fifths of all other Persons.] The actual Enumeration 
shall be made within three Years after the first Meeting of the Congress of the 
United States, and within every subsequent Term of ten Years, in such manner 
as they shall by Law direct. The Number of Representatives shall not exceed 
one for every thirty Thousand, but each State shall have at Least one Repre¬ 
sentative; and until such enumeration shall be made, the State of New Hamp¬ 
shire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and 

12 



13 


CONSTITUTION OF THE UNITED STATES. Art.I, § 3 


Providence Plantations one, Connecticut five, New-York six, New Jersey four, 
Pennsylvania eight, Delaware one, Maryland six, Virginia ten. North Carolina 
five. South Carolina five, and Georgia three. 

Hylton V. United States (3 Dali.) 171; Loughborough v. Blake, 18 U. S. (5 Wheat.) 

317; Groves v. Slaughter, 40 U. S. (15 Pet.) 449; Smith v. Turner, 48 U. S. (7 How.) 283; 

Dodge V. Woolsey, 59 U. S. (18 How.) 331; Insurance Co. v. Soule, 74 U. S. (7 Wall.) 
433; De Treville v. Smalls, 98 U. S. (8 Otto) 517; Elk v. Wilkins, 112 U. S. 94; Pollock 

V. Trust Co., 157 U. S. 429; Downes v. Bidwell, 182 U. S. 244; Thomas v. United States, 

192 U. S. 363; United States v. Mitchell, 8 O. F. D. 71, 58 Fed. 993. 

^ When vacancies happen in the Representation from any State, the Exec¬ 
utive Authority thereof shall issue Writs of Election to fill such Vacancies. 

McPherson v. Blacker, 146 U. S. 1. 

® The House of Representatives shall chuse their Speaker and other Officers; 
and shall have the sole Power of Impeachment. 

Section 3. ^ The Senate of the United States shall be composed of two 

Senators from each State, chosen by the Legislature thereof, for six Years; and 
each Senator shall have one Vote. 

Dodge V. Woolsey, 59 U. S. (18 How.) 331, 3 O. F. D. 300; Miner v. Happersett, 
88 U. S. (21 Wall.) 162; In re Green, 134 U. S. 377. 

^ Immediately after they shall be assembled in Consequence of the first 
Election, they shall be divided as equally as may be into three Classes. The 
Seats of the Senators of the first Class shall be vacated at the Expiration of 
the second year, of the second Class at the Expiration of the fourth Year, and 
of the third Class at the Expiration of the sixth Year, so that one-third may 
be chosen every second Year; and if Vacancies happen by Resignation, or 
otherwise, during the Recess of the Legislature of any State, the Executive 
thereof may make temporary Appointments until the next Meeting of the Leg- 
islature, which shall then fill such Vacancies. 

^ No Person shall be a Senator who shall not have attained to the Age of 
thirty Years, and been nine Years a Citizen of the United States, and who 
shall not, when elected, be an Inhabitant of that State for which he shall be 
chosen. 

Boyd V. Nebraska, 143 U. S. 135; United States v. Wong Kim Ark, 169 U. S. 649. 

* The Vice President of the United States shall be President of the Senate, 
but shall have no Vote, unless they be equally divided. 

® The Senate shall chuse their other Officers, and also a President pro tem¬ 
pore, in the Absence of the Vice President, or when he shall exercise the Office 
of President of the United States. 

® The Senate shall have the sole Power to try all Impeachments. When 
sitting for that Purpose, they shall be on Oath or Affirmation. When the 
President of the United States is tried, the Chief Justice shall preside: And 
no Person shall be convicted without the concurrence of two thirds of the 
Members present. 

^ Judgment in Cases of Impeachment shall not extend further than to 
removal from Office, and disqualification to hold and enjoy any office of honor, 
Trust or Profit under the United States: but the Party convicted shall never¬ 
theless be liable and subject to Indictment, Trial, Judgment and Punishment, 
according to Law. 




Art.1, § 4. 


14 

CONSTITUTION OF THE UNITED STATES. 


Section 4. ' The Times, Places and Manner of holding Elections for 

Senators and Representatives, shall be prescribed in each State by the Legisla¬ 
ture thereof; but the Congress may at any time by Law make or alter such 
Regulations, except as to the Places of chusing Senators. 

Dodge V. Woolsey, 69 U. S. (18 How.) 331, 3 O. F. D. 300; Dred Scott v. Sanford, 60 U. S. 
(19 How.) 393; Minor v. Happersett, 88 U. S. (21 Wall.) 162; United States v. Reese, 
92 U. S. 214; Ex parte Yarbrough, 110 U. S. 651; McPherson v. Blacker, 146 U. S. 1; State v. 
Russell, 10 O. D. (N.P.) 255. 

^ The Congress shall assemble at least once in every Year, and such Meeting 
shall be on the first Monday in December, unless they shall by Law appoint a 
different Day. 

Mining Co. v. United States, 175 U. S. 423. 


Section 5. ^ Each House shall be the Judge of the Elections, Returns and 

Qualifications of its own Members, and a Majority of each shall constitute a 
Quorum to do Business; but a smaller Number may adjourn from day to day, 
and may be authorized to compel the Attendance of Absent Members, in such 
Manner, and under such Penalties as each House may provide. 

Dodge V. Woolsey, 59 U. S. (18 How.) 331, 3 O. F. D. 300; In re Loney, 134 U. S. 372; 
Renner v. Bennett, 21 O. S. 431. 

^ Each House may determine the Rules of its Proceedings, punish its Mem¬ 
bers for disorderly Behavior, and, with the Concurrence of two-thirds, expel a 
Member. 

Kilbourn v. Thompson, 103 U. S. 168. 

^ Each House shall keep a Journal of its Proceedings, and from time to time 
publish the same, excepting such Parts as may in their Judgment require 
Secrecy; and the Yeas and Nays of the Members of either House on any ques¬ 
tion shall, at the Desire of one-fifth of those present, be entered on the Journal. 

Field V. Clark. 143 U. S. 649; United States v. Ballin, 144 U. S. 1; Wilkes County 
V. Coler, 180 U. S. 506. 

^ Neither House, during the Session of Congress, shall, without the Con¬ 
sent of the other, adjourn for more than three days, nor to any other Place 
than that in which the two Houses shall be sitting. 

Mining Co. v. United States, 175 U. S. 423. 


Section 6 . ^ The Senators and Representatives shall receive a Compensa¬ 

tion for their services, to be ascertained by Law, and paid out of the Treasury 
of the United States. They shall in all Cases, except Treason, Felony and 
Breach of the Peace, be privileged from Arrest during their attendance at the 
Session of their respective Houses, and in going to and returning from the 
same; and for any Speech or Debate in either House, they shall not be ques¬ 
tioned in any other Place. 

Dodge V. Woolsey, 69 U. S. (18 How.) 331, 3 O. F. D. 300; Burton v. United States, 196 
U. S. 283; Williamson v. United States, 207 U. S. 425. 

2 No Senator or Representative shall, during the Time for which he was 
elected, be appointed to any civil Office under the authority of the United 
States, which shall have been created, or the Emoluments whereof shall have 
been encreased during such time; and no Person holding any Office under the 
United States, shall be a Member of either House during his Continuance in 
Office. 



15 

CONSTITUTION OF THE UNITED STATES. Art.I, § 7. 


Section 7. ^ All Bills for raising Revenue shall originate in the House of 

Representatives; but the Senate may propose or concur with Amendments as 
on other bills. 

Dodge V. Woolsey, 59 U. S. 331, 3 O. F. D. 300; United States v. Norton, 91 U. S. 566; 
Bank v. Nebeker, 167 U. S. 196; Millard v. Roberts, 202 U. S. 429; Flint v. Stone, Tracy Co., 
220 U. S. 107. 

^ Every Bill which shall have passed the House of Representatives and the 
Senate, shall, before it become a Law, be presented to the President of the 
United States; If he approve he shall sign it, but if not he shall return it, with 
his Objections to that House in which it shall have originated, who shall enter 
the Objections at large on their Journal, and proceed to reconsider it. If after 
such Reconsideration two-thirds of that House shall agree to pass the Bill, it 
shall be sent, together with the Objections, to the other House, by which it 
shall likewise be reconsidered, and if approved by two-thirds of that House, it 
shall become a Law. But in all such Cases the Votes of both Houses shall be 
determined by Yeas and Nays, and the Names of the Persons voting for and 
against the Bill shall be entered on the Journal of each House respectively. If 
any Bill shall not be returned by the President within ten Days (Sundays ex¬ 
cepted) after it shall have been presented to him, the same shall be a Law, in 
like Manner as if he had signed it, unless the Congress by their Adjournment 
prevent its Return, in which case it shall not be a Law. 

Burgess v. Salmon. 97 U. S. (7 Otto) 381; Church v. United States, 143 U. S. 457, 

* Every Order, Resolution, or Vote to which the Concurrence of the Senate 
and House of Representatives may be necessary (except on a question of Ad¬ 
journment) shall be presented to the President of the United States; and before 
the Same shall take Effect, shall be approved by him, or being disapproved by 
him, shall be repassed by two thirds of the .Senate and House of Representatives, 
according to the Rules and Limitations prescribed in the Case of a Bill. 

Mining Co. v. United States, 175 U. S. 423; Fourteen Diamond Rings v. United States, 
183 U. S. 176. 

Section 8. ' The Congress shall have Power To lay and collect Taxes 

Duties, Imposts and Excises, to pay the Debts and provide for the common 
Defence and general Welfare of the United States; but all Duties, Imposts 
and Excises shall be uniform throughout the United States; 

The statutes creating the railroad commission G. C. § 487, et seq., are valid and 
constitutional: Railroad v. Railroad Commission, 21 O. D. (N.P.) 468. 

For general references to the entire section see: 

M’Culloch V. Maryland, 17 U. S. (A Wheat.) 316; Dodge v. Woolsey, 59 U. S. 331, 
3 O. F. D. 300; Elk '/. Wilkins, 112 U. S. 94; Minnesota v. Barber, 136 U. S. 313; Benson 
V. United States, 146 U. S. 325; Zadig v. Baldwin, 166 U. S. I’85; Nichol v. Ames, 173 

U. S. 509; Lawder v. Stone, 187 U. S. 281; Whaling Co. v. United States, 187 U. S. 447; 

Cornell v. Coyne, 192 U. S. 418; Kansas v. Colorado, 206 U. S. 46. 

Collet V. Collet, 2 U. S. (2 Dali.) 294; Hylton v. United States, 3 U. S. (3 Dali.) 171; 

Loughborough v. Blake, 18 U. S. (5 Wheat.) 317; Smith v. Turner, 48 U. S. (7 How.) 
283; Marriott v. Brune, 50 U. S. (9 How.) 619; Cooley v. Board of Wardens, 53 U. S. 
(12 How.) 299; Dodge v. Woolsey, 59 U. S. (18 How.) 331; Pennsylvania v. Bridge Co., 
59 U. S. (18 How.) 421; Hadden v. The Collector, 72 U. S. (5 Wall.) 107; Hamilton Co. v. 
Mass, 73 U. S. (6 Wall.) 632; Insurance Co. v. Soule, 74 U. S. (7 Wall.) 433; Woodruff 
v. Parham, 75 U. S. (8 Wall.) 123; Scholey v. Rew, 90 U. S. (23 Wall.) 331; Springer v. 
United States, 102 U. S. 586; Van Brocklin v. Tennessee. 117 U. S. 151; United States v. 
Hill, 123 U. S. 681; Field v. Clark, 143 U. S. 649; United States v. Snyder, 149 U. S. 210; 
United States v. Realty Co., 163 U. S. 427; Knowlton v. Moore, 178 U. S. 41; Fairbank 
r. United States, 181 U. S. 283; Downes v. Bidwell, 1.82 U. S. 244; Dooley v. United States, 

183 U. S. 151; Patton v. Brady, 184 U. S. 608; Snyder v. Bettman, 190 IT. S. 249; Thomas 

V. United States, 192 U. S. 363; Binns v. United States, 194 U. S. 486; South Carolina 

V United States, 199 U. S. 437; North Dakota, ex rel., v. Hanson, 215 U. S. 515; Flint v. 

Stone, Tracy Co., 220 U. S. 107 [distinguishing Pollock v. Farmers Loan and Trust Co., 
157 U. S. 429, 158 U. S. 601]. 

*To borrow Money on the credit of the United States; 

Weston V. Charleston, 27 U. S. (2 Pet.) 449; United States v. In-Lots, 4 O. F. D. 253, 
Fed. Cases, 15441a. 



16 


Art.I, § 8. 


CONSTITUTION OF THE UNITED STATES. 


® To regulate Commerce with Foreign Nations, and among the several States, 
and with the Indian Tribes; 

Cherokee Nation v. Georgia, 30 U. S. (5 Pet.) 1; Worcester v. Georgia, 31 U. S. 
(6 Pet.) 515; Groves v. Slaughter, 40 U. S. (15 Pet.) 449; License Cases, 46 U. S. (5 How.) 
504; Smith v. Turner, 48 U. S. (7 How.) 283; Cooley v. Board of Wardens, 53 U. S. 
(12 How.) 299; Conway v. Taylor, 66 U. S. (1 Black) 603; Steamship Co. v. Joliffe, 69 
U. S. (2 Wall.) 450; Railroad Co. v. Pennsylvania, 82 U. S. (15 Wall.) 232, 82 U. S. 
(15 Wall.) 284; Railroad Co. v. Fuller, 84 U. S. (17 Wall.) 560; Henderson v. Mayor, 92 

U. S. (2 Otto) 259; Munn v. Illinois, 94 U. S. (4 Otto) 113; Foster v. Master and Wardens, 

94 U. S. (4 Otto) 246; McCready v. Virginia, 94 U. S. (4 Otto) 391; Railroad Co. v. Husen, 

95 U. S. (5 Otto) 465; Hall v. De Cuir, 95 U. S. (5 Otto) 485;* Telegraph Co. v. Telegraph 

Co., 96 U. S. (6 Otto) 1; Cook v. Pennsylvania, 97 U. S. (7 Otto) 566; Machine Co. v. 

Gage, 100 U. S. (10 Otto) 676; Lord v. Steamship Co., 102 U. S. (12 Otto) 541; People 

V. Commissioners, 104 U. S. (14 Otto) 466; Turner v. Maryland, 107 U. S. (17 Otto) 38; 
Cooper v. New Orleans, 112 U. S. 69; Brown v. Houston, 114 U. S. 622; Walling v. 
Michigan, 116 U. S. 446; Railway v. Illinois, 118 U. S. 557; United States v. Arjona, 120 

U. S. 479; Fargo v. Michigan, 121 U. S. 230; Mining Co. v. Pennsylvania, 125 U. S. 181; 
Bowman v. Railway Co., 125 U. S. 465; Kidd v. Pearson, 128 U. S. 1; Leisy v. Hardin, 
135 U. S. 100; McCall v. California, 136 U. S. 104; Budd v. New York, 143 U. S. 517; O’Neil 

V. Vermont, 144 U. S. 323; Ficklen v. Taxing District, 145 U. S. 1; Brass v. North Dakota, 

ex rel., 153 U. S. 391; Interstate Commerce Commission v. Brimson, 154 U. S. 447; Coal 

Co. V. Bates, 156 U. S. 577; In re Debs, 158 U. S. 564; Geer v. Connecticut, 161 U. S. 519; 

Telegraph Co. v. James, 162 U. S. 650; Railroad Co. v. New York, 165 U. S. 628; Rhodes 

v. Iowa, 170 U. S. 412; Vance v. Vandercook Co., 170 U. S. 438; Guano v. Board of 

Agriculture, 171 U. S. 345; Insurance Co. v. Cravens, 178 U. S. 389; May v. New Orleans. 
178 U. S. 496; Williams v. Fears, 179 U. S. 270; Railroad v. Jacobson, 179 U. S. 287; 

Austin V. Tennessee, 179 U. S. 343; Dooley v. United States, 183 U. S. 151; Dairy Co. v. 
Ohio, 183 U. S. 238; McChord v. Railroad Co., 183 U. S. 483; Railroad Co. v. Eubank, 184 
U. S. 27; Match Co. v. Ontonagon, 188 U. S. 82; Cummings v. Chicago, 188 U. S. 410; 
United States v. Lynah, 188 U. S. 445; Arbuckle v. Blackburn, 191 U. S. 405; New York, 

ex rel., v. Knight, 192 U. S. 21; Field v. Paving Co., 194 U. S. 618; Johnson v. Southern 

Pacific Co., 196 U. S. 1; Fullerton v. Texas, 196 U. S. 192; Steamship Co. v. Grube, 196 
U. S. 407; Railroad Co. v. Mayes, 201 U. S. 321; Cox v. Texas, 202 U. S. 446; 

McNeill V. Railway Co., 202 U. S. 543; Railroad Co. v. Miller, 202 U. S. 584; New 

Mexico, ex rel., v. Railroad Co., 203 U. S. 38; Bridge Co. v. Hager 203 U. S. 109; 

Heyman v. Railway Co., 203 U. S. 270; Martin v. Railroad Co., 203 U. S. 284; Rail¬ 
road Commission v. Railroad Co., 203 U. S. 335; Rearick v. Pennsylvania, 203 U. S. 

507; New York, ex rel., v. Reardon, 204 U. S. 152; Delamater v. South Dakota, 205 

U. S. 93; The Winnebago, 205 U. S. 354; Express Co. v. Kentucky, 206 U. S. 129; Railroad 

V. Wharton, 207 ^U. S. 328; Lee v. New Jersey, 207 U. S. 67; Employer’s Liability Cases, 

207 U. S. 463; Darnell v. Memphis, 208 U. S. 113; Adair v. United States, 208 U. S. 161, 

208 U. S. 177; Dick v. United States, 208 U. S. 340; Water Co. v. McCarter, 209 U. S. 349; 

Railway v. Texas, 210 U. S. 217; St. Louis, Iron Mountain and S. Ry. v. Taylor, 210 
U. S. 281; Silz v. Hesterberg, 211 U. S. 31; Railway v. United States, 212 U. S. 481; 
United .States, ex rel., v. Railway, 213 U. S. 366; District pf Columbia v. Brooke, 214 
U. S. 138; Express Co. v. Kentucky, 214 U. S. 218; Railway v. Gutierrez, 215 U. S. 87; 
Telegraph Co. v. Kansas, ex rel., 216 U. S. 1; Railway v. Kansas, ex rel., 216 U. S. 262; 
Ludwig V. Telegraph Co., 216 U. S. 146; Railway v. Mazursky, 216 U. S. 122; Pullman Co. 
v. Kansas, ex rel., 216 U. S. 56; Bridge Co. v. United States, 216 U. S. 177; Brown-Forman 
Co. V. Kentucky, 217 U. S. 563; Textbook Co. v. Pigg, 217 U. S. 91; Oil Co. v. Tennessee, 
217 U. S. 413; Railway v. Arkansas, 217 U. S. 136; Railway v. King, 217 U. S. 524; 
Herndon v. Railway, 218 U. S. 135; Dozier v. Alabama, 218 U. S. 124; Telegraph Co. v. 
Milling Co., 218 U. S. 406; Atlantic Coast liine R. R. v. Riverside Mills, 219 U. S. 186; 
Broadnax v. Missouri, 219 U. S. 285; Engel v. O’Malley, 219 U. S. 128; Chicago, Rock 
Island and Pacific Ry. v. Arkansas, 219 U. S. 453; Louisville and Nashville R. R. v. 
Mottley, 219 U. S. 467; Chicago, Burlington and Quincy Ry. v. United States, 220 

U. S. 559; Baltimore and Ohio R. R. Co. v. Interstate Commerce Commission, 221 U. S. 

613; Raguet v. Wade, 4 O. 107; Newton, et al., v. Board of Commissioners of Mahoning 
Co., 26 O. S. 618; Western Union Telegraph Co. v. Mayer, 28 O. S. 521; McGuire v. State, 
42 O. S. 530; Arnold v. Yanders, 56 O. S. 417; L. S. & M. S. Ry. Co. v. State, ex rel., 
8 O. C. C. 220, 4 O. C. D. 406 faffirmed, no report, 56 O. S. 736, 1 O. S. U. 581, 37 Bull. 
193]; In re Oscar Julius, 4 O. C. C. (N.S.) 604, 16 O. C. D. 423; Uhrlaub v. Cincinnati, 
et al., 8 O. C. C. (N.S.) 505, 18 O. C. D. 797 [affirmed, no report, 72 O. S. 667]; D. T. & I. 
Ry. Co. V. State, 11 O. C. C. (N.S.) 482, 21 O. C. D. 20; Detroit, Toledo & Ironton Ry. Co. v. 
State, 82 O. S. 60; State of Ohio v. Yanders, 7 O. N. P. 659; In re Yanders, 1 O. N. P 190- 

Fitton V. State, 1 O. N. P. 133, 14 O. D. (N.P.) 156; State v. Bridge Co., 18 O. D. (N.P.) 

273; Chemical Co. v. Calvert, 8 O. N. P. (N.S.) 361, 19 O. D. (N.P.) 571; Railroad 

V. Railroad Commission, 8 O. N. P. (N.S.) 233: Flemm v. Railway, 10 O. N. P. (N.S.) 273, 

21 O. D. (N.P.) 152; Adams Express Co. v. Ohio State Auditor, 10 O. F. D. 655, 165 

U. S. 194; Railway Co. v. Ohio, 12 O. F. D. 376, 173 U. S. 285; Dairy Co. v. Ohio 14 

O. F. D. 12, 183 U. S. 238; Arbuckle v. Blackburn, 191 U. S. 189, 14 O. F. D. 321. 

The statutes creating the railroad commission G. C. § 478, et seq., are valid and 
constitutional: Railroad v. Railroad Commission, 21 O. D. (N.P.) 468. 

* To establish an uniform Rule of Naturalization, ^ and uniform Laws on 
the subject of Bankruptcies throughout the United States;^ 

Sturges V. Crowninshield, 17 U. S. (4 Wheat.) 122; Cook v. Moffat, 46 U. S. (5 How.) 
295; Minor v. Happersett, 88 U. S. (21 Wall.) 162; Boyd v. Nebraska, ex rel., 143 U. S. 




17 

CONSTITUTION OP THE UNITED STATES. 


Art.I, § 8. 


135; Bank v. Moyses. 186 U. S. 181; Holmgren v. United States. 217 U. S. 509; Carpenter 
Bros. V. O’Connor, 16 O. C. C. 526, 9 O. C. D. 201 [affirmed, no report. Carpenter Bros. v. 
O’Connor, 60 O. S. 605]; In re McKay, 13 O. F. D. 570, 1 Am. Bankruptcy Rep. 292; 
Stearns v. Flick, 11 O. F. D. 473, 4 Am. Bankruptcy Rep. 723; In re Strauss, 11 O. F. D. 
168, Fed. Cases, 13532. 

® To coin Money, regulate the Value thereof, and of foreign Coin, and fix 
the Standard of Weights and Measures; 

Fox V. state of Ohio, 2 O. F. D. 499, 512, 46 U. S. (5 How.) 410; United States 
V. Marigold, 50 U. S. (9 How.) 560; Roosevelt v. Meyer, 68 U. S. (1 Wall.) 512; Legal 
Tender Cases, 79 U. S. (12 Wall.) 457; Rae v. Loan & Guaranty Co., 176 U. S. 121; Su Fan 
V. United States, 218 U. S. 302. 

® To provide for the Punishment of counterfeiting the Securities and cur¬ 
rent Coin of the United States; 

Fox V. state of Ohio, 46 U. S. (5 How.) 410, 2 O. F. D. 499; United States v. 
Marigold, 50 U. S. (9 How.) 560. 


^ To establish Post Offices and post Roads; 

Telegraph Co. v. Telegraph Co., 96 U. S. (6 Otto) 1; In re Debs, 158 U. S. 564; 
Martin v. Railway, 203 U. S. 284. 

® To promote the Progress of Science and useful Arts, by securing for lim¬ 
ited Times to Authors and Inventors the exclusive Right to their respective 
Writings and Discoveries ; 

Wheaton v. Peters, 33 U. S. (8 Pet.) 591; Wilson v. Rousseau, 45 U. S. (4 How.) 
646; Kendall v. Winsor, 62 U. S. (21 How.) 322; Lithographic Co. v. Sarony, 111 U. S. 53; 
Lutterworth v. United States, ex rel., 112 U. S. 50; Thompson v. Boisselier, 114 U. S. 1; 
Gardner v. Herz, 118 U. S. 180; Banks v. Manchester, 128 U. S. 244; United States v. 
Telephone Co., 128 U. S. 315; Belknap v. Schild, 161 U. S. 10; Postal Supply Co. v. Bruce, 
194 U. S. 601; Allen v. Riley, 203 U. S. 347; Tobacco Co. v. Werckmeister, 207 U. S. 284; 
Bobbs-Merrill Co. v. Straus, 210 U. S. 339; Tod v. Wick Bros. & Co., 36 O. S. 370; Woolen 
V. Banker, 4 O. F. D. 440, 2 Flip, 33, Fed. Cases, 18030; Dewel v. Bohmer, 4 O. F. D. 533, 
2 Flip, 168, Fed. Cases, 4213; United States v. In-Lots, 4 O. F. D. 253; Henry -Bill 
Publishing Co. v. Smythe, 5 O. F. D. 531, 27 Fed. 914, 16 Bull. 137; Banks v. Manchester, 
6 O. F. D. 216, 128 U. S. 244; Arbuckle v. Blackburn, 13 O. F. D. 44, 51 C. C. A. 122, 113 
Fed. 616. 

® To constitute Tribunals inferior to the supreme Court; 

Downs V. Bidwell, 182 U. S. 244. 

To define and punish Piracies and Felonies committed on the high Seas, 
and Offences against the Law of Nations; 

United States v. Arjona, 120 U. S. 479; State of Ohio v. Hogan, 63 O. S. 202. 

To declare War, grant Letters of Marque and Reprisal, and make Rules 
concerning Captures on Land and Water; 

Brown v. United States, 12 U. S. (8 Cranch) 110; Haycraft v. United States, 89 
U. S. (22 Wall.) 81; Kirk v. Lynd, 106 U. S. (16 Otto) 315. 

To raise and support Armies, but no Appropriation of Money to that 
Use shall be for a longer Term than two Years; 

Presser v. Illinois, 116 U. S. 252. 

To provide and maintain a Navy; 

To make Rules for the Government and Regulation of the land and naval 
Forces; 

Dynes v. Hoover, 61 U. S. (20 How.) 65; Ex parte Reed, 100 U. S. (10 Otto) 13; 
Johnson v. Sayre, 158 U. S. 109; Carter v. Roberts, 177 U. S. 496; Carter v. McClaughry, 
183 U. S. 365. 

To provide for calling forth the Militia to execute the Laws of the Union, 
suppress Insurrections and repel Invasions; 

Luther v. Borden, 48 U. S. (7 How.) 1. 




Art.I, § 9. 


18 

CONSTITUTION OF THE UNITED STATES. 


To provide for organizing, arming, and disciplining, the Militia, and for 
governing such Part of them as may be employed in the service of the United 
States, reserving to the States respectively, the Appointment of the Officers 
and the Authority of training the Militia according to the discipline prescribed 
by Congress; 

To exercise exclusive Legislation in all cases whatsoever, over such 
District (not exceeding ten Miles square) as may, by Cession of particular 
States, and the Acceptance of Congress, become the Seat of the Government 
of the United States, and to exercise like Authority over all Places purchased 
by the Consent of the Legislature of the State in which the Same shall be, for 
the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Build¬ 
ings ;—And 

Young V. Bank, 8 U. S. (4 Cranch) 384; Loughborough v. Blake, 18 U. S. (5 Wheat.) 
317; Cohens v. Virginia, 19 U. S. (6 W'heat.) 264; Pollard v. Hagan, 44 U. S. (3 How.) 212; 
Willard v. Presbury, 81 U. S. (14 Wall.) 676; Railway Co. v. Lowe, 114 U. S. 525; Shoemaker 
V. United States, 147 U. S. 282; Palmer v. Barrett, 162 U. S. 399; Parsons v. United States, 
167 U. S. 324; Stearns v. Minnesota, 179 U. S. 223; Steamship Co. v. Grube, 196 U. S. 407; 
Battle V. United States, 209 U. S. 36; Railway v. Gutierrez, 215 U. S. 87; Renner v. Bennett, 
21 O. S. 431; United States v. In-Lots, 4 O. F. D. 253, Fed. Cases, 15441a. 

To make all Laws which shall be necessary and proper for carrying into 
Execution the foregoing Powers and all other powers vested by this Constitu¬ 
tion in the Government of the United States, or in any Department or Officer 
thereof. 

McCullough V. Maryland, 17 U. S. (4 Wheat.) 316; Ex parte Wells, 59 U. S. (18 How.) 
307; Abelman v. Booth, 62 U. S. (21 How.) 506; Ex parte Garland, 71 U. S. (4 Wall.) 333; 
Legal Tender Cases, 79 U. S. (12 Wall.) 457; Tennessee v. Davis, 100 U. S. 257; Ex parte 
Curtis, 106 U. S. 371; United States v. Harris, 106 U. S. 629; Ex parte Yarbrough, 110 
U. S. 651; United States v. Arjona, 120 U. S. 479; In re Neagle, 135 U. S. 1; Logan v. 
United States, 144 U. S. 263; Boske v. Corningore, 177 U. S. 459; Fairbank v. United States, 
181 U. S. 283. 


Section 9. ^ The Migration or Importation of such Persons as any of the 
States now existing shall think proper to admit, shall not be prohibitecl by the 
Congress prior to the Year one thousand eight hundred and eight, but a Tax 
or Duty may be imposed on such Importation, not exceeding ten dollars for 
each Person. 

For general references to this section see: 

McCulloch V. Maryland, 17 U. S. (4 Wheat.)- 316; Dodge v. Woolsey, 3 O. F. D. 300, 
59 U. S. (18 How.) 331; Marvin v. Trout, 15 O. F. D. 141, 199 U. S. 213, 3 O. L. R. 550. 

Groves v. Slaughter, 40 U. S. (15 Pet.) 449; Passenger Cases, 48 U. S. (7 How.) 283; 
Scott v. Sanford, 60 U. S. (19 How.) 393; People v. Translantic Co., 107 U. S. 59. 

2 The Privilege of the Writ of Habeas Corpus shall not be suspended, unless 
when in Cases of Rebellion or Invasion the public Safety may require it. 

Ex parte Burford, 7 U. S. (3 Cranch) 448; Luther v. Borden, 48 U. S. (7 How.) 1; 
Turner v. Williams, 194 U. S, 279; Fisher v. Baker, 203 U. S. 174. 

® No Bill of Attainder or ex post facto law shall be passed. 

Barron v. Baltimore, 32 U. S. (7 Pet.) 243; Ex parte Garland, 71 U. S. (4 Wall.) 333; 
Presser v. Illinois, 116 U. S. 252; In re Neagle, 135 U. S. 1; Kepner v. United States, 195 
U. S. 100. 

^ No Capitation, or other direct, tax shall be laid, unless in Proportion to 
the Census or Enumeration herein before directed to be taken. 

Hylton V. United States, 3 U. S. (3 Dali.) 171; Loughborough v. Blake, 18 U. S. 
(5 Wheat.) 317; Veazie Bank v. Fenno, 75 U. S. (8 Wall.) 533; Nicol v. Ames, 173 U. S. 
509; Knowlton v. Moore, 178 U. S. 41; Downes v. Bidwell, 182 U. S. 244; Thomas v. United 
States, 192 U. S. 363; Cornell v. Coyne, 192 U. S. 418; South Carolina v. United States 
199 U. S. 437; United States v. Mitchell, 8 O, F. D. 71. 



19 

CONSTITUTION OF THE UNITED STATES. 


Art.I, § 10. 


® No Tax or Duty shall be laid on Articles exported from any State. 

Marriott v. Brune, 50 U. S, (9 How.) 619; Insurance Co. v. Soule, 74 U. S. (7 Wall.) 
433; Hinson v. Lott, 75 U. S. (8 Wall.) 148; Coal Co. v. Bates, 156 U. S. 577; Nicol v. Ames, 
173 U. S. 509; Williams v. Fearns, 179 U. S. 270; Fairbank v. United States, 181 U. S. 
283; Downes v. Bidwell, 182 U. S. 244; Dooley v. United States, 183 U. S. 151; Lowder 
V. Stone, 187 U. S. 281; Lottery Case, 188 U. S. 321; Cornell v. Coyne, 192 U. S. 418. 


® No Preference shall be given by any regulation of Commerce or Revenue 
to the Ports of one State over those of another: nor shall Vessels bound to, or 
from, one State, be obliged to enter, clear, or pay Duties in another. 

Gibbons v. Ogden, 22 U. S. (9 Wheat.) 1; Passenger Cases, 48 U. S. (7 How.) 283; 
Cooley V. Board of Wardens, 53 U. S. (12 How.) 299; Pennsylvania v. Bridge Co., 59 
U. S. (18 How.) 421; Munn v. Illinois, 94 U. S. (4 Otto) 113; Steamship Co. v. Board of 
Health, 118 U. S. 455; Johnson v. Elevator Co., 119 U. S. 388; Budd v. New York, 143 
U. S. 517; Downes v. Bidwell, 182 U. S. 244; Whaling Co. v. United States, 187 U. S. 447; 
Thompson v. Darden, 198 U. S. 310. 


^ No Money shall be drawn from the Treasury, but in Consequence of 
Appropriations made by Law; and a regular Statement and Account of the 
Receipts and Expenditures of all public Money shall be published from time 
to time. 

Brashear v. Mason, 47 U. S. (6 How,) 92; Reeside v. Walker, 52 U. S. (11 How.) 272; 
Railroad Co. v. Alabama, 101 U. S. 832; Hart v. United States, 118 U. S. 62; United States 
V. Johnson, 124 U. S. 236; Downes v. Bidwell, 182 U. S. 244. 


® No Title of Nobility shall be granted by the United States: And no 
Person holding any Office of Profit or Trust under them, shall, without the 
Consent of the Congress, accept of any present. Emolument, Office, or Title, of 
any kind whatever, from any King, Prince, or foreign State. 


Section 10 . ^ No State shall enter into any Treaty, Alliance, or Confed¬ 

eration; grant Letters of Marque or Reprisal; coin Money; -emit Bills of 
Credit; make any Thing but gold and silver Coin a Tender in Payment of 
Debts; ® pass any Bill of Attainder, ex post facto Law, ^ or Law impairing the 
Obligation of Contracts, or grant any Title of Nobility. 


For this section generally, see: 

Fletcher v. Peck, 2 U. S. (6 Crunch, 87) 308; Cohens v. Virginia, 5 U. S. (6 Wheat. 
264) 90; Cherokee Nation v. Georgia, 30 U. S. (5 Pet.) 1; Barron v. Baltimore, 32 U. S. 
(7 Pet.) 243; Rhode Island v. Massachusetts, 37 U. S. (12 Pet.) 657; Holmes v. Jennison, 
39 U. S. (14 Pet.) 540; Prigg v. Pennsylvania, 41 U. S. (16 Pet.) 539; Pollard v. Files, 

43 U. S. (2 How.) 591; Luther v. Borden, 48 U. S. (7 How.) 1; Florida v. Georgia, 58 

U. S. (17 How.) 478; Ex parte Garland, 71 U. S. (4 Wall.) 333; Railroad v. Maguire, 

87 U. S. (20 Wall.) 36; Minor v. Happersett, 88 U. S. (21 Wall.) 162; Hauenstein v. 

I.ynham, 100 U. S. 483; New Hampshire v. Louisiana, 108 U. S. 76; Minnesota v. Barber, 
136 U. S. 313; Bridge Co. v. Henderson City, 173 U. S. 592; Louisiana v. Texas, 176 

U. S. 1; May v. New Orleans, 178 U. S. 496; Stearns v. Minnesota, 179 U. S. 223; Blythe 

V. Hinckley, 180 U. S. 333; De Lima v. Bidwell, 182 U. S. 1; Downes v. Bidwell, 182 U. S. 
2ii; Kansas v. Colorado, 185 U. S. 125; Noble State Bank v. Haskell, 219 U. S. 104 (motion 
for leave to file petition for rehearing denied. Noble State Bank v. Haskell, 219 U. S. 575). 


1 United States v. Arjona, 120 U. S. 479. 

zcraie- v Missouri, 29 U. S. (4 Pet.) 410; Gwin v. Breedlove, 43 U. S. (2 How.) 29; 

Curran v Arkansas, 56 U. S. (15 How.) 304; Barings v. Dabney, 86 U. S. (19 Wall.) 1; 

Hagood V. Southern, 117 U. S. 52; Wesley v. Eells, 12 O. F. D. 161, 90 Fed. 151; Kentucky 

Union Co. v. Kentucky, 219 U. S. 140. 

aCarnenter v. Commonwealth, 58 U. S. (17 How.) 456; Kring v. Missouri, 107 U. S. 221; 
Medley Petftioner, 134 U. S. 160; Hawker v. New York, 170 U. S. 189; Mallett v. North 
Carolina 181 U S. 589; Ughbanks v. Armstrong, 208 U. S. 481; Oil Co. v. Texas, 212 
U. S. 86; Oil Co. v. Texas, 212 U. S. 112; France v. State, 57 O. S. 1; State v. Ottman, 
4 O. N. P. 195, 6 O. D. (N.P.) 265. 

iCnlder V Bull 3 U. S. (3 Dali.) 386; Fletcher v. Peck, 10 U. S. (6 Crunch) 87; State 
V WilSn, 11 U. S. (7 Crunch) 164; Sturges v. CrowninshieW, 17 U. S. (4 Wheat ) 122; 
Dartmouth College v. Woodward, 17 U. S. (4 Wheat.) 518; Ogden v. Saunders, 25 U. S. 
7 i2 wS) 213; Bank v. Lessee, 27 U. S. (2 Pet.) 492; Bank v. Billings, 29 U. S. (4 Pet.) 

514- Armstrong v. Athens Co., 2 O. F. D. 154, 41 U. S. (16 Pet.) 281; Bronson v. Kinzie, 

42 U. S. (1 How.) 311; Gordon v. Tax Court, 44 U. S. (3 How.) 133; Cook v. Moffat, 

46 U S (5 How.) 295; Bridge Co. v. Dix, 47 U. S. (6 How.) 507; Smith v. Hunter, 48 

!■" S (i How.) 738; Phalen v. Commonwealth, 49 U. S. (8 How.) 163; Mills v. County, 
49 U S (8 How.) 569; Butler v. Commonwealth, 51 U. S. (10 How.) 402; Bank v. 
State! ex rel., 53 U. S. (12 How.) 1; Curran v. State, 56 U. S. (15 How.) 304; Bank v. 



Art.I, § 10. 


20 

CONSTITUTION OF THE UNITED STATES. 


Knoop, 57 U. S. (16 How.) 369; Dodge v. Woolsey, 3 O. F. D. 300, 59 U. S. (18 How.) 

331; Aspinwajl v. Commissioners, 63 U. S. (22 How.) 364; Farney v. Towle, 66 U. S 

(1 Black) 350; Bank v. Skelly, 3 O. F. D. 681, 66 U. S. (1 Black) 436; Van Hoffman v. City, 
71 U. S. (4 Wall.) 535; Curtis v. Whitney, 80 U. S. (13 Wall.) 68; Railroad Co. v. McClure, 
77 U. S. (10 Wall.) 511; Pennsylvania College Cases, 80 U. S. (13 Wall.) 190; Delmas 
V. Insurance Co., 81 U. S. (14 Wall.) 661; Gunn v. Barry, 82 U. S. (15 Wall.) 610; Walker 
V. Whitehead, 83 U. S. (16 Wall.) 314; Railroad Co. v. Maguire, 87 U. S. (20 Wall.) 36; 
County V. Savings Bank, 92 U. S. 631; Insurance Co. v. Council, 93 U. S. 116; Farrington 
V. Tennessee, 95 U. S. 679; Newton v. Commissioners, 4 O. F. D. 555, 100 U. S. (10 Otto) 
548; Railway Co. v. Philadelphia, 101 U. S. 528; Wright v. Nagle, 101 U. S. 791; Stone 

V. Mississippi, 101 U. S. 814; Barrett v. Holmes, 102 U. S. 651; Wolff v. New Orleans, 

1G3 U. S. 358; Penniman’s Case, 103 U. S. 714; Asylum v. New Orleans, 105 U. S. 362; 
Vance v. Vance, 108 U. S. 514; Louisiana, ex rel., v. New Orleans, 108 U. S. 568; Hoff 
V. County, 110 U. S. 53; Hagar v. Reclamation District, 111 U. S. 701; Landing Co. v. 
Slaughter House Co., Ill U. S. 746; Poindexter v. Greenhow, 114 U. S. 270; Carter v. 
Greenhow, 114 U. S. 317; Church v. Kelsey, 121 U. S. 282; In re Ayers, 123 U. S. 443; 
Administrators v. San Francisco, 124 U. S. 639; Waterworks Co. v. Refining Co., 125 

U. S. 18; De Saussure v. Gaillard, 127 U. S. 216; Freeland v. Williams, 131 U. S. 405; Hans 

V. Louisiana, 134 U. S. 1; Railway Co. v. Minnesota, 134 U. S. 467; McGahey v. Virginia, 
135 U. S. 662; Railway Co. v. City, 138 U. S. 98; Pennoyer v. McConnaughy, 140 U. S. 1; 
People, ex rel., v. Squire, 145 U. S. 175; Brown v. Smart, 145 U. S. 454; Morley v. Railway 
Co., 146 U. S. 162; Bier v. McGehee, 148 U. S. 137; Snell v. Chicago, 152 U. S. 191; New 
Orleans v. Benjamin, 153 U. S. 411; Railroad Co. v. Tennessee, 153 U. S. 486; Railway Co. 
V. Gill, 156 U. S. 649; Railroad Co. v. Louisiana, ex rel., 157 U. S. 219; Land Co. v. 
Minnesota, 159 U. S. 526; Bank v. Tennessee, 161 U. S. 134, 164; Hamilton v. Brown, 
161 U. S. 256; Zadig v. Baldwin, 166 U. S. 485; Supply Co. v. Brooklyn, 166 U. S. 685; 
Hawker v. New York, 170 U. S. 189; Railway Co. v. Texas, 170 U. S. 226; Scudder v. 
Comptroller, 175 U. S. 32; Walsh v. Railroad Co., 13 O. F. D. 234, 176 U. S. 4 69; Railway 
Co. V. Gardner, 177 U. S. 332; Williams v. Wingo, 177 U. S. 601; Water Co. v. Freeport, 
180 U. S. 587; St. Paul Gas Light Co. v. St. Paul, 181 U. S. 145; Pinney v. Nelson, 183 

U. S. 144; Orr v. Gilman, 183 U. S. 278; Detroit v. Railway Co., 184 U. S. 368; Wilson v. 
Standefer, 184 U. S. 399; Wilson v. Iseminger, 185 U. S. 55; Waterworks Co. v. Louisiana, 
185 U. S. 336; Supply Co. v. Mobile, 186 U. S. 212; Glue Co. v. Glue Co., 187 U. S. 611; 
Sawyer v. Piper, 189 U. S. 154; City v. Light Co., 191 U. S. 150; Defiance Water Co. v. 
City of Defiance, 14 O. F. D. 127, 191 U. S. 184; Bank v. Parker, 192 U. S. 73; County 

V. Irrigation Co., 192 U. S. 201; Book Co. v. Kansas, 193 U. S. 49; Railroad v. City, 193 

U. S. 416; Water Co. v. Ne'wburyport, 193 U. S. 561; Loan Association v. Brahan, 193 U. S. 
635; Wright v. Insurance Co., 193 U. S. 657; Shaw v. City, 194 U. S. 593; Water Works Co. 

V. Helena, 195 U. S. 383; Lee v. Robinson, 196 U. S. 64; Muhlker v. Railroad Co., 197 U. S. 
544; New York, ex rel., v. Commissioners, 199 U. S. 1; Marvin v. Trout, 15 O. F. D. 141, 

199 U. S. 213, 3 O. L. R. 550; Manigault v. Springs, 199 U. S. 473; Water Co. v. Knoxville, 

200 U. S. 22; Serralles v. Esbri, 200 U. S. 103; Mead v. Portland, 200 U. S. 148; Graham 

V. Folsom, 200 U. S. 248; Gunter v. Railroad Co., 200 U. S. 273; Railroad Co. v. Illinois, 
ex rel., 201 U. S. 506; Powers v. Railway Co., 201 U. S. 543; Devine v. Los Angeles, 202 

U. S. 313; Vicksburg v. Waterworks Co., 202 U. S. 453; National Council v. State Council, 
203 U. S. 151; Deposit Co. v. City, ,203 U. S. 311; Offield v. Railroad Co., 203 U. S. 372; 
Railroad Co. v. New Haven, 203 U. S. 379; Smelting Co. v. Colorado, 204 U. S. 103; 
Railway Co. v. Railway Co., 204 U. S. 116; Railway Co. v. City, 205 U. S. 236; Chanler 

V. Kelsey, 205 U. S. 466; Smith v. Jennings, 206 U. S. 276; Vicksburg v. Waterworks Co., 

206 U. S. 496; Bernheimer v. Converse, 206 U. S. 516; Sauer v. City, 206 U. S. 536; Sullivan 
V. Texas, 207 U. S. 416; Hunter v. Pittsburgh, 207 U. S. 161; Polk v. Life Association, 

207 U. S. 310; Railway v. Duluth, 208 U. S. 583; Jetton v. University, 208 U. S. 489; 

Water Co. v. McCarter, 209 U. S. 349; St. Louis v. Railways Co., 210 U. S. 266; Railway 

V. Vicksburg, 209 U. S. 358; Cosmopolitan Club v. Virginia, 208 U. S. 378; Telephone Co. 

V. Los Angeles, 211 U. S. 265; Berea College v. Kentucky, 211 U. S. 45; Packing Co. v. 
Arkansas, 212 U. S. 322; Murray v. Distilling Co., 213 U. S. 151; Des Moines v. City 
Railway Co., 214 U. S. 179; Railway v. Minneapolis, 214 U. S. 497; Henley v. Myers, 215* 
U. S. 373; Minneapolis v. Street Railway Co., 215 U. S. 417; Louisiana, ex rel., v. New 
Orleans, 215 U. S. 170; Road Co. v. Hines, 215 U. S. 336; Railway v. Kansas, ex rel., 216 
U. S. 262; Wright v. Railroad and Banking Co., 216 U. S. 420; Railway v. Minnesota, 
216 U. S. 206, 234; Frellsen v. Crandell, 217 U. S. 71; Bank v. Kentucky, 217 U. S. 443; 
Lumber Co. v. Mississippi, 217 U, S. 433; Railway v. Railway, 218 U. S. 431; Griffith v. 
Connecticut, 218 U. S. 563; Fisher v. New Orleans, 218 U. S. 438; Moffitt v. Kelly, 218 

U. S. 400; Shawnee Sewerage and Drainage Co. v. Stearns, 220 U. S. 462; J. W. Perry Co. 

V. Norfolk, 220 U. S. 472; Grand Trunk Western Ry. v. Railroad Commission of Indiana, 
221 U. S. 400; Texas and New Orleans R. R. v. Miller, 221 U. S. 408 faffirming 128 S. W. 
11651; Texas and New Orleans R. R. v. Gross, 221 U. S. 417 [affirming 128 S. W. 1173]; 
Fifth Avenue Coach Co. v. New York, 221 U. S. 467 [affirming 194 N, Y. 19]; State v! 
Commercial Bank of Cincinnati, 7 O. 125; Armstrong v. Treas. of Athens County, 10 
O. 235; Matheny v. Golden, 5 O. S. 361; Goodale v. Fennell, et al., 27 O. S. 426; State, 
ex rel., v. Eagle Insurance Co., 50 O. S. 252; Thomas v. State, 76 O. S. 341; State, ex rel., v. 
Creamer, 85 O. S. 349; State v. Norton, 5 O. N. P. 183, 7 O. D. (N.P.) 354; Dayton v. Rail¬ 
way Co., 12 O, D. (N.P.) 258; Cincinnati v. Ferguson, 12 O. D. (N.P.) 488; Caldwell v. 
Railway Co., 14 O. D. (N.P.) 375; Little v. Altman, 15 O. D. (N.P.) 355; Cincinnati v. 
Louisville Railway, 9 O. N. P. (N.S.) 433; Coke Co. v. Hamilton, 37 Fed. 832, 6 O. F. D. 
265; Shaver v. The Pennsylvania Company, 71 Fed. 931; 9 O. F. D. 221; Insurance Co. v. 
Cuyahoga Co., 12 O. F. D. 619, 45 C. C. A. 233, 106 Fed. 123; Railway v. Cleveland 135 
Fed. 368, 14 O. F. D. 746. 




21 

CONSTITUTION OF THE UNITED STATES. 


Art.II, § 1. 


No State shall, without the consent of the Congress, lay any Imposts or 
Duties on Imports or Exports, except what may be absolutely necessary for 
executing it’s inspection Laws: and the net Produce of all Duties and Imposts, 
laid by any State on Imports or Exports, shall be for the Use of the Treasury 
of the United States; and all such Laws shall be subject to the Revision and 
Controul of the Congress. 

McCulloch V. Maryland, 17 U. S. (4 Wheat.) 316; Passenger Cases, 48 U. S. (7 How.) 
283; Cooley v. Board of Wardens, 53 U. S. (12 How.) 299; Low v. Austin, 80 U. S. (13 
Wall.) 29; Railroad Co. v. Pennsylvania, 82 U. S. (15 Wall.) 284; Cook v. Pennsylvania, 
97 U. S. 566; People v. Commissioners, 104 U. S. 466; Turner v. Maryland, 107 U. S. 38; 
People V. Compagnie, 107 U. S. 59; Brown v. Houston, 114 U. S. 622; Coal Co. v. Bates, 
156 U. S. 577; Guano Co. v. North Carolina, 171 U. S. 345; Dooley v. United States, 183 
U. S. 151; Cornell v, Coyne, 192 U. S. 418; Wire Co. v. Speed, 192 \j. S. 5C0; New Mexico, 
ex rel., v. Railroad Co., 203 U- S. 38; Burke v. Wells, 208 U. S. 14; Selliger v. Kentucky, 
213 U. S. 203. 

® No State shall, without the Consent of Congress, lay any Duty of Ton- 
nage, keep Troops, or Ships of War in time of Peace, enter into any Agreement 
or Compact with another State, or with a foreign Power, or engage in War, 
unless actually invaded, or in such imminent Danger as will not admit of delay. 

Cooley V. Board of Wardens, 53 U. S. (12 How.) 299; Cox v. Collector, 79 U. S. 
(12 Wall.) 204; Steamship Co. v. Tinker, 94 U. S. 238; Packet Co. v. Keokuk, 95 U. S. 80; 
Guy V. Baltimore, 100 U. S. (10 Otto) 434; Steamship Co. v. Board of Health, 118 U. S. 
455; Huse v. Glover, 119 U. S. 543; Perry v. Torrence, 8 O. 522. 


ARTICLE 11. 

Section 1 . ^ The executive Power shall be vested in a President of the 

United States of America. He shall hold his Office during the Term of four 
Years, and, together with the Vice President, chosen for the same Term, be 
elected, as follows 

^ Each State shall appoint, in such Manner as the Legislature thereof may 
direct, a Number of Electors, equal to the whole Number of Senators and 
Representatives to which the State may be entitled in the Congress; but no 
Senator or Representative, or Person holding an Office of Trust or Profit under 
the United States, shall be appointed an Elector. 

[The electors shall meet in their respective States, and vote by ballot for two Persons, of whom 
one at least shall not be an Inhabitant of the same State with 'themselves. And they shall make a List 
of all the Persons voted for, and of the Number of votes for each; which List they shall sign and 
certify, and transmit sealed to the Seat of Government of the United States, directed to the President 
of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Repre¬ 
sentatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest 
Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors 
appointed; and if there be more than one who have such Majority, and have an equal Number of 
Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; 
and if no Person have a Majority, then from the five highest on the List the said House shall in like 
Manner chuse the President. But in chusing the President, the Votes shall be taken by States the 
Representation Lorn each State having one \’ote; A quorum for this Purpose shall consist of a Mem¬ 
ber or Members Horn two-thirds of the States, and a Majority of all the States shall be necessary to a 
Choice. In every Case, after the Choice of the President, the Person having the greatest Number of 
\'otes of the Electors shall be the Vice President, But if there should remain two or more who have 
equal \’otes, the Senate shall chuse from them by Ballot the Vice-President.] 

Minor v. Happersett, 88 U. S. (21 Wall.) 162; In re Green, 134 U. S. 377; McPherson 
V. Blacker, 146 U. S. 1. 

^ The Congress may determine the Time of chusing the Electors, and the 
Day on which they shall give their Votes; which Day shall be the same through¬ 
out the United States. 

No Person except a natural born Citizen, or a Citizen of the United States, 
at the Time of the Adoption of this Constitution, shall be eligible to the Office of 
President; neither shall any Person be eligible to that Office who shall not have 
attained to the age of thirty five Years, and been fourteen Years a Resident 
within the United States. 

® In Case of the Removal of the President from Office, or of his Death, 
Resignation, or Inability to Discharge the Powers and Duties of the said Office, 
the same shall devolve on the Vice President, and the Congress may by Law pro- 



22 

Art.II, § 2. CONSTITUTION OF TUB UNITED STATES. 


vide for the Case of Removal, Death, Resignation, or Inability, both of the 
President and Vice President, declaring what Officer shall then act as President, 
and such Officer shall act accordingly, until the Disability be removed, or a Presi¬ 
dent shall be elected. 

® The President shall, at stated Times, receive for his Services, a Compensa¬ 
tion, which shall neither be increased nor diminished during the Period for 
which he shall have been elected, and he shall not receive within that Period 
any other Emolument from the United States, or any of them. 

^ Before he enter on the Execution of his Office, he shall take the following 
Oath or Affirmation.—■“! do solemnly swear (or affirm) that I will faithfully 
execute the Office of President of the United States, and will to the best of my 
Ability, preserve, protect and defend the Constitution of the United States.” 

Section 2 . ^ The President shall be Commander in Chief of the Army and 
Navy of the United States, and of the Militia of the several States, when called 
into the actual Service of the United States; he may require the Opinion, in 
writing, of the principal Officer in each of the executive Departments, upon 
any Subject relating to the Duties of their respective Offices, and he shall have 
Power to grant Reprieves and Pardons for Offenses against the United States, 
except in Cases of Impeachment. 

Ex parte Wells, 59 U. S. (18 How.) 307; Dynes v. Hoover, 61 U. S. (20 How.) 65; 
Ex parte Garland, 71 U. S. (4 Wall.) 333; Young v. United States, 97 U. S. 39; In re Neagle, 

135 U. S. 1; Johnson v. Sayre, 158 U. S. 109. 

2 He shall have Power, by and with the Advice and Consent of the Senate, 
to make Treaties, provided two-thirds of the Senators present concur; and he 
shall nominate, and by and with the Advice and Consent of the Senate, shall 
appoint Ambassadors, other public Ministers and Consuls, Judges of the 
supreme Court, and all other Officers of the United States, whose Appoint¬ 
ments are not herein otherwise provided for, and which shall be established by 
Law; but the Congress may by Law vest the Appointment of such inferior 
Officers, as they think proper, in the President alone, in the Courts of Law, or 
in the Heads of Departments. 

Marbury v. Madison, 5 U. S. (1 Cranch) 137; Ex parte Hennen, 38 U. S. (13 Pet.) 
230; United States, ex rel., v. Guthrie, 58 U. S. (17 How.) 284; United States v. Hartwell, 
73 U. S. (6 Wall.) 385; United States v. Moore, 95 U. S. (5 Otto) 760; United States v. 
Germaine, 99 U. S. (9 Otto) 508; Wood v. United States, 107 U. S. (17 Otto) 414; United 
States V. Perkins, 116 U. S. 483; United States v. Arjona, 120 U. S. 479; Auffmordt v. 
Hedden, 137 U. S. 310; Ekin v. United States, 142 U. S. 651; United States v. Allred, 155 

U. S. 591; United States v. Eaton, 169 U. S. 331; Rice v. Ames, 180 U. S. 371; De Lima 

V. Bidwell, 182 U. S. 1; Pepke v. United States, 183 U. S. 176; Shurtleff v. United States, 
189 U. S. 311; Keller v. United States, 213 U. S. 138. 

^ The President shall have Power to fill up all Vacancies that may happen 
during the Recess of the Senate, by granting Commissions which shall expire 
at the End of their next Session. 

United States v. Corson, 114 U. S. 619; In re Neagle, 135 U. S. 1; Ex parte Ward, 
173 U. S. 452. 

Section 3. He shall from time to time give to the Congress Information 
of the State of the Union, and recommend to their Consideration such Measures 
as he shall judge necessary and expedient; he may, on extraordinary Occasions, 
convene both Houses, or either of them, and in Case of Disagreement between 
them, with Respect to the Time of Adjournment, he may adjourn them to 
such Time as he shall think proper; he shall receive Ambassadors and other 
public Ministers; he shall take Care that the Laws be faithfully executed, and 
shall Commission all the Officers of the United States. 

Marbury v. Madison, 5 U. S. (1 Cranch) 137; In re Neagle, 135 U. S. 1; In re Balz, 

136 U. S. 403; Commission v. Railway Co., 167 U. S. 479. 



23 

CONSTITUTION OF THE UNITED STATES. 


Art.II, § 4. 


Section 4 . The President, Vice President and all civil Officers of the 
United States, shall be rernoved from Office on Impeachment for, and Convic¬ 
tion of, Treason, Bribery, or other high Crimes and Misdemeanors. 

Shurtleff v. United States. 189 U. S. 311. 


ARTICLE III. 

Section 1 . The judicial Power of the United States, shall be vested in one 
supreme Court, and in such inferior Courts as the Congress may from time to 
time ordain and establish. The Judges, both of the supreme and inferior 
Courts, shall hold their Offices during good Behavior, and shall, at stated Times, 
receive for their Services, a Compensation, which shall not be diminished during 
their Continuance in Office. 

Ex parte Bollman, 8 U. S. (4 Cranch) 75; Martin v. Lessee, 14 U. S. (1 Wheat.) 304; 
Insurance Co. v. Canter, 26 U. S. (1 Pet.) 511; Livingston v. Story, 34 U. S. (9 Pet.) 632; 
Benner v. Porter, 50 U. S. (9 How.) 235; In re Kaine, 55 U. S. (14 How.) 103; Lessee 
V. Improvement Co., 59 U. S. (18 How.) 272; Ex parte Garland, 71 U. S. (4 Wall.) 333; 
Insurance Co. v. Dunn, 86 U. S. (19 Wall.) 214; United States v. Railroad Co., 98 U. S. 
509; Tennessee v. Davis, 100 U. S. (10 Otto) 257; Ames v. Kansas, ex rel., Ill U. S. 449; 
In re Loney, 134 U. S. 372; McAllister v. United States, 141 U. S. 174; In re Cooper, 143 
U. S. 472; Holmes v. Goldsmith, 147 U. S. 150; United States v. Coe, 155 U. S. 76; Robertson 
v. Baldwin, 165 U. S. 275; Fruit Co. v. Henderson, 170 U. S. 511; Ex parte Henry Ward, 
173 U. S. 452; Turner v. Williams, 194 U. S. 279; James v. United States, 202 U. S. 401; 
Ex parte Wisner, 203 U. S. 449; Kansas v. Colorado, 206 U. S. 46; Holmgren v. United 
States, 217 U. S. 509; Muskrat v. United States, 219 U. S. 346; United States v. In-Lots, 
4 O. F. D. 253; Bell v. Trust Co., 3 O. F. D. 514, 1 Bliss, 260, Fed Cases, 1260; Lee v. 
Insurance Co., 3 O. F. D. 663, Fed Cases, 8181. 


Section 2 . ^ The judicial Power shall extend to all Cases, in Law and 
Equity, arising under this Constitution, the Laws of the United States, and 
Treaties made, or which shall be made, under their authority;—to all Cases 
affecting Ambassadors, other public Ministers and Consuls;—to all Cases of 
admiralty and maritime Jurisdiction;—to Controversies to which the United 
States shall be a Party;—to Controversies between two or more States;—between 
a State and Citizens of another State;—between Citizens of different States,— 
between Citizens of the same State claiming Lands under Grants of different 
States, and between a State, or the Citizens thereof, and foreign States, Citizens 
or Subjects. 

Chisholm v. Georgia, 2 U. S. (2 Dali.) 419; Mossman v. Higginson, 4 U. S. (4 Dali.) 12; 
Hodgson V. Bowerbank, 9 U. S. (5 Cranch) 303; Pawlet v. Clark, 13 U. S. (9 Cranch) 292; 

Martin v. Lessee, 14 U. S. (1 Wheat.) 304; Cohens v. Virginia, 19 U. S. (6 Wheat.) 

264; Osborn v. Bank, 22 U. S. (9 Wheat.) 738; Governor of Georgia v. Madrazo, 26 U. S. 
Cl Pet.) 110; Ross v. Doe, 26 U. S. (1 Pet.) 655; Parsons v. Bedford, 28 U. S. (3 Pet.) 433; 
Cherokee Nation v. Georgia, 30 U. S. (5 Pet.) 1; Worcester v. Georgia, 31 U. S. (6 Pet.) 
515; Cary v. Curtis, 44 U. S. (3 How.) 236; Lane v. Vick, 44 U. S. (3 How.) 464; License 

C'Jas’es, 46 U. S. (5 How.) 504; Navigation Co. v. Bank, 47 U. S. (6 How.) 344; Luther 

V. Borden, 48 U. S. (7 How.) 1; Missouri v. low'a, 48 U. S. (7 How.) 660; Sheldon v. Sill, 
49 U S (8 How.) 441; McNulty v. Batty, 51 U. S. (10 How.) 72; Newton v. Stebbins, 51 
Q. S. (10 How.) 586; Teal v. Felton, 53 U. S. (12 How.) 284; Pennsylvania v. Bridge Co., 
54 U. S. (13 How.) 518; Bundle v. Canal Co., 55 U. S. (14 How.) 80; Railroad Co. v. 
Derby, 55 U. S. (14 How.) 468; Railroad Co. v. Railroad Co., 56 U. S. (15 How.) 233; 
Marshall v. Railroad Co., 57 U. S. (16 How.) 314; Fontain v. Ravenel, 58 U. S. (17 How.) 
369; Smith v. Maryland, 59 U. S. (18 How.) 71; Lessee v. Improvement Co., 59 U. S. 
(18 How.) 272; Dodge v. Woolsey, 59 U. S. (18 How.) 331; Scott v. Sanford, 60 U. S. (19 
How.) 393; Irvine v. Marshall, 61 U. S. (20 How'.) 558; Fenn v. Holme, 62 U. S. (21 How.) 
481; The Moses Taylor, 71 U. S. (4 Wall.) 411; Georgia v. Stanton, 73 U. S. (6 Wall.) 50; 
Barney v Baltimore, 73 U. S. (6 Wall.) 280; Blyew v. United States, 80 U. S. (13 Wall.) 
581; Christmas v. Russell, 81 U. S. (14 Wall.) 69; Holden v. Joy, 84 U. S. (17 Wall.) 211; 
Atkins V. Disintegrating Co., 85 U. S. (18 Wall.) 272; Insurance Co. v. Dunn, 86 U. S. 
(19 Wall.) 214; Coit v. Robinson. 86 U. S. (19 Wall.) 274; Insurance Co. v. Morse, 87 
U S (20 Wall.) 445; Murdock v. Memphis, 87 U, S. (20 Wall.) 590; Ober v. Gallagher, 93 
u’ S (3 Otto) 199; Hotel Co. v. Wade, 97 U. S. (7 Otto) 13; United States v. Railroad Co., 
98 li. S. (8 Otto) 569; Tennessee v. Davis, 100 U. S. (10 Otto) 257; The “City of Panama,” 
101 U. S. (11 Otto) 453; Ex parte Gordon, 104 U. S. (14 Otto) 515; Ex parte Boyd, 105 
U S (15 Otto) 647; New Hampshire v. Louisiana, 108 U. S. 76; Ames v. Kansas, ex rel.. 
Ill ij. S. 449; Rosenbaum v. Bauer, 120 U. S. 450; Wisconsin v. Insurance Co., 127 U. S. 



Art.III, §3. CONSTITUTION OP THE UNITED STATES. 


265; Smith v. Adams, 130 U. S. 167; In re Baiz, 135 U. S. 403; Manchester v. Massachusetts, 
139 U. S 240; In re Fassett, 142 U. S. 479; Commission v. Brimson, 154 U. S. 447; California 
V. Pacific Co., 157 U. S. 229; Pollock v. Trust Co., 157 U. S. 429; The Glide, 167 U. S. 606; 
Mining Co. v. United States, 175 U. S. 423; Louisiana v. Texas, 176 U. S. 1; Mining Co. v. 

Rutter, 177 U. S. 505; Knapp v. McCaffrey, 177 U. S. 638; Smith v. Reeves, 178 U. S. 436; 

Wiley V. Sinkler, 179 U. S. 58; Workman v. City, 179 U. S. 552; Downes v. Bidwell, 182 

U. S. 244; Minnesota v. Securities Co., 184 U. S. 199; Minnesota v. Hitchcock, 185 U. S. 

373; Elliott v. Toeppner, 187 U. S. 327; Whaling Co. v. United States, 187 U. S. 447; Ayres 

V. Polsdorfer, 187 U. S. 585; Hennessy v. Drug Co., 189 U. S. 25; Colombia v. Cauca Co., 

190 U. S. 524; South Dakota v. North Carolina, 192 U. S. 286; Stevenson v. Fain. 195 

U. S. 165; Coal Co. v. Baker, 196 U. S. 432; Sauer v. New York, 206 U. S. 536; Railway 

V. Taylor, 210 U. S. 281; B. & O. R. R. Co. v. Cary, 28 O. S. 208; Ex parte Pritchard, 

6 O. F. D. 604; Ohio Dairy Co. v. Railway, 7 O. N. P. (N.S.) 451, 19 O. D. (N.P.) 97; 

Butler V. Young, 4 O. F. D. 238, 1 Flip, 276, Fed. Cases, 2245; The Steamboat General 
Buell V. Long, 18 O. S. .521; Railway Co. v. Fulton, Admr., 59 O. S. 575; Dundas v. Bowler, 
2 O. F. D. 250, 3 McLean, 204, Fed. Cases, 4140; New York Life Insurance Co. v. Best, 
23 O. S. 105. 

2 In all cases affecting Ambassadors, other public Ministers and Consuls, 
and those in which a State shall be Party, the supreme Court shall have original 
Jurisdiction. In all the other Cases before mentioned, the supreme Court shall 
have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and 
under such Regulations as the Congress shall make. 

Ex parte Bollman v. Ex parte Swartwout, 8 U. S. (4 Cranch) 75; Matthews v. Zane, 

8 U. S. (4 Cranch) 382; Martin v. Lessee, 14 U. S. (1 Wheat.) 304; Cohens v. Virginia, 

19 U. S. (6 Wheat.) 264; Osborn v. Bank, 22 U. S. (9 Wheat.) 738; The United States 
V. Ortega, 24 U. S. (11 Wheat.) 467; Governor v. IMadrazo, 26 U. S. (1 Pet.) 110; Ex parte 
Crane, 30 U. S. (5 Pet.) 190; Harrison v. Nixon, 34 U. S. (9 Pet.) 483; United States v. 
Chicago, 48 U. S. (7 How.) 185; Pennsylvania v. Bridge Co., 54 U. S. (13 How.) 518; 
Florida v. Georgia, 58 U. S. (17 How.) 478; Steamer Oregon v. Rocca, 59 U. S. (18 How.) 
510; Ex parte Vallandigham, 68 U. S. (1 Wall.) 243; Freeborn v. Smith, 69 U. S. (2 Wall.) 
160; United States v. Circuit Judges, 70 U. S. (3 Wall.) 673; Ex parte Bradley, 74 U. S. 
(7 Wall.) 364; Pennsylvania v. Quicksilver Co., 77 U. S. (10 Wall.) 553; Morgan v. 
Thornhill, 78 U. S. (11 Wall.) 65; United States v. Railroad Co., 98 U. S. (8 Otto) 569; 
United States v. Texas, 143 U. S. 621; In re Honhorst, 150 U. S. 653; Missouri v. Sanitary 
District, 180 U. S. 208; Oregon v. Hitchcock. 202 U. S. 60; United States v. Bitty, 208 U. S. 
393; Railway v. Taylor, 210 U. S. 281; Muskrat v. United States, 219 U. S. 346; In re Jones 
Law, 11 O. C. C. (N.S.) 33, 20 O. C. D. 697; In re Strauss, 11 O. F. D. 168; Fox v. State of 
Ohio, 2 O. F. D. 499. 

^ The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; 
and such Trial shall be held in the State where the said Crimes shall have been 
committed; but when not committed within any State, the Trial shall be at such 
Place or Places as the Congress may by Law have directed. 

Evans v. Bollen, 4 U. S. (4 Dali.) 342; United States v. Dawson, 56 U. S. (15 How.) 
467; United States v. Jackalow, 66 U. S. (1 Black) 484; Eilenbecker v. District Court, 
134 U. S. 31; In re Palliser, 136 U. S. 257; Cook v. United States, 138 U. S. 157; Ball v. 
United States, 140 U. S. 118; Horner v. United States, 143 U. S. 207; In re Debs, 158 U. S. 
564; Barrett v. United States (No. 1), 169 U. S. 218; Thompson v. Utah, 170 U. S. 343; 
Traction Co. v. Hof, 174 U. S. 1; Schick v. United States, 195 U. S. 65; Dorr v. United 
States, 195 U. S. 138; Trono v. United States, 199 U. S. 521; Tinsley v. Treat, 205 U. S. 20; 
Packing Co. v. United States, 209 U. S. 56; Haas v. Henkel, 216 U. S. 462; Dille v. State, 
34 O. S. 617; Marvin v. Trout, 15 O. F. D. 141, 3 O. L. R. 550. 


Section 3 . ^ Treason against the United States, shall consist only in levying 
War against them, or in adhering to their Enemies, giving them Aid and Com¬ 
fort. No Person shall be convicted of Treason unless on the Testimony of two 
Witnesses to the same overt Act, or on Confession in open Court. 

Young V. United States, 97 U. S. (7 Otto) 39. 

^ The Congress shall have Power to declare the Punishment of Treason, but 
no Attainder of Treason shall work Corruption of Blood, or Forfeiture except 
during the Life of the Person attainted. 

Ex parte Garland, 71 U. S. (4 Wall.) 333; Wallach v. Van Riswick, 92 U, S. 202; 
Jenkins v. Collard, 145 U. S. 546, 7 O. F. D. 683. 




25 

CONSTITUTION OF THE UNITED STATES. Art.IV, § 1. 


ARTICLE IV. 

Section 1 . Full Faith and Credit shall be given in each State to the public 
Acts. Records, and judicial Proceedings of every other State. And the Congress 
may by general Laws prescribe the Manner in which such Acts, Records and 
Proceedings shall be proved, and the Effect thereof. 

Mills V. Duryee, 11 U. S. (7 Cranch) 481; Buckner v. Finley. 27 U. S. (2 Pet.) 586: 
M’Elmoyle v. Cohen, 38 U. S. (13 Pet.) 312; Mitchell v. Lenox, 39 U. S. (14 Pet.) 49; Bank 
V. Dalton. 50 U. S. (9 How.) 522; Booth v. Clark, 58 U. S. (17 How.) 322; Hoyt v. Sheldon, 
66 U. S. (1 Black) 518; Christmas v. Russell, 72 U. S. (5 Wall.) 290; Green v. Van Buskirk, 

72 U. S. (5 Wall.) 307; Cheever v. Wilson, 76 U. S. (9 Wall.) 108; Crapo v. Kelley, 83 

U. S. (16 Wall.) 610; Dupasseur v. Rochereau, 88 U. S. (21 Wall.) 130; Turnbull v. Payson, 
95 U. S. (5 Otto) 418; Bonaparte v. Tax Court, 104 U. S. (14 Otto) 592; Embry v. Palmer, 
107 U. S. (17 Otto) 3; Wisconsin v. Insurance Co., 127 U. S. 265; Cole v. Cunning-ham, 133 
U. S. 107; Machine Co. v. Radcliffe, 137 U. S. 287; Huntington v. Attrill, 146 U. S. 657; 

I.loyd V. Matthews, 155 U. S. 222; Goldey v. Morning News, 156 U. S. 518; Hilton v. 

Guyot, 159 U. S. 113; Laing v. Rigney, 160 U. S. 531; Telegraph Co. v. Purdy, 162 U. S. 
329; Bank v. Farnum, 176 U. S. 640; Clarke v. Clarke, 178 U. S. 186; Railroad Co. v. 
Tourville, 179 U. S. 322; Atherton v. Atherton, 181 U. S. 155; Jacobs v. Marks, 182 
U. S. 583; Loan Association v. Ebaugh, 185 U. S. 114; Andrews v. Andrews, 188 U. S. 14; 
IJfe Ins. Co. V. McGrew, 188 U. S. 291; Publishing Co. v. Beckwith, 188 U. S. 567; Loan 
Association v. Williamson, 189 U. S. 122; American Provision Co. v. Davis Provision Co., 
191 U. S. 373; Railroad Co. v. Flannigan, 192 U. S. 29; Loan Association v. Brahan, 193 

U. S.. 635; Bank v. Wiley. 195 U. S. 257; Allen v. Alleghany Co., 196 U. S. 458; Jaster 

V. Currie, 198 U. S. 144; Haddock v. Haddock, 201 IT. S. 562; New York, ex rel., v. Miller, 

202 U. S. 584; Assurance Co. v. Building Association, 203 U. S. 106; Life Association 

V. McDonough, 204 U. S. 8; Tilt v. Kelsey, 207 U. S. 43; Brown v. Fletcher’s Estate, 
210 U. S. 82; Fauntleroy v. Lum, 210 tJ. S. 230; Express Co. v. Mullins, 212 U. S. 311; 

Bagley v. Fire Extinguisher Co., 212 U. S. 477; Railway v. Sowers, 213 U. S. 55; Smith¬ 

sonian Institution v. St. John, 214 U. S. 19; Everett v. Everett, 215 U. S. 203; Fall v. 
Eastin, 215 U. S. 1; Olmsted v. Olmsted, 216 U. S. 386; Railway v. Melton, 218 U. S. 36; 
Sistare v. Sistare, 218 U. S. 1; Hunter v. Insurance Co., 218 U. S. 573; West Side R. R. 
V. Pittsburgh Construction Co., 219 U. S. 92; Gavieres v. United States, 220 U. S. 338; Texas 
and New Orleans R. R. v. Miller, 221 U. S. 408 [affirming 128 S. W. 1165]; Texas and 
New Orleans R. R. v. Gross, 221 U. S. 417 [affirming 128 S. W. 1173]; McMurtry v. Campbell, 
1 O. 259; Pennywit, et al., v. Foote, et al., 27 O. S. 600; Sipes v. Whitney, 30 O. S. 69; 
Kingsborough v. Tousley, 56 O. S. 450; In the Matter of the Estate of Crawford. 68 
O S. 58; In re Estate of Crawford. 21 O. C. C. 554, 11 O. C. D. 605 [affirmed, Crawford, 
In re, 68 O. S. 58]; Hafner v. Bank of Enterprise, 3 O. C. C. (N.S.) 626, 14 O. C. D. 652; 
State V. Ottman, 4 O. N. P. 195, 6 O. D. (N.P.) 265; Keenan v. Keenan, 5 O. N. P. fN.S.) 12; 
Waterhouse v. Waterhouse, 6 O. N. P. 106, 8 O. D. (N.P.) 73; Mettler v. Warner, 21 
O. D. (N.P.) 184. 


Section 2. ^ The Citizens of each State shall be entitled to all Privileges 

and Immunities of Citizens in the several States. 

Bank v. Earle, 38 U. S. (13 Pet.) 519; Groves v. Slaughter, 40 U. S. (15 Pet.) 449; 
Passenger Cases, 48 U. S. (7 How.) 283; Dodge v. Woolsey, 59 U. S. (18 How.) 331; 

Conner v. Elliott, 59 U. S. (18 How.) 591; Scott v. Sanford, 60 U. S. (19 How.) 393; 

Insurance Co. v. Massachusetts, 77 U. S. (10 Wall.) 566; Ward v. Maryland, 79 U. S. 
(12 Wall.) 418; Slaughter House Cases, 83 U. S. (16 Wall.) 36; Bradwell v. State, 83 

U. S. (16 Wall.) 130; Railroad v. Railroad, 87 U. S. (20 Wall.) 137; Minor v. Happersett, 

88 U. S. (21 Wall.) 162; Bank v. Lowery, 93 U, S. (3 Otto) 72; McCready v. Virginia, 94 

U. S. (4 Otto) 391; Ex parte Virginia, 100 U. S. (10 Otto) 339; Railroad Co. v. Koontz, 

104 U. S. (14 Otto) 5; United States v. Harris, 106 U. S. (16 Otto) 629; Brown v. Houston, 

114 U. S. 622; Mining Co. v. Pennsylvania, 125 U. S. 181; Cole v. Cunningham, 133 U. S. 

107; I.eisy v. Hardin (dissenting opinion), 135 U. S. 100; Reynolds v. Alden, 136 U. S. 348; 
Railroad Co. v. Pennsylvania, 136 U. S. 114; Minnesota v. Barber, 136 U. S. 313; Boyd 

V. Nebraska, ex rel., 143 U. S. 135; The Haytian Republic, 154 U. S. 118; Coal Co. v. Bates, 

156 U. S. 577; Noble v. Mitchell, 164 U. S. 367; Adams Express Co. v. Ohio State Auditor, 
10 O. F. D. 655, 165 U. S. 194; Railway Co. v. Haber, 169 U. S. 613; Blake v. McClung, 

172 U. S. 239, 176 U. S. 59; Maxwell v. Dow, 176 U. S. 581; Oil Co. v. Texas, 177 U. S. 28; 

Sully V. Bank, 178 U. S. 289; Gallup v. Schmidt, 183 U. S. 300; Insurance Co. v. Connecticut, 
185 U. S. 364; Chadwick v. Kelley, 187 U. S. 540; Manley v. Park, 187 U. S. 547; Power 
Co. V. Railroad Co., 187 U. S. 569; Glue Co. v. Glue Co., 187 U. S, 611; Lottery Case, 188 

U. S. 321; Provision Co. v. Provision Co., 191 U. S. 373; Chambers v. B. & O. Ry., 16 

O. F. D. 123, 6 O. L. R. 498, 207 U. S. 142; Water Co. v. McCarter, 209 U. S. 349; Berea 

College V. Kentucky, 211 U. S. 45; Railway Passenger Assurance Co. of Hartford, Conn., 

V. Pierce, 27 O. S. 155; State v. Ottman, 4 O. N. P. 195, 6 O. D. (N.P.) 265; Jacoby Bros. v. 

Dotson, 5 O. N. P. 282, 7 O. D. (N.P.) 412; Davies v. State, ex rel., 6 O. C. C. (N.S.) 417, 

17 O. C. D. 593 [reversed, Lucas Co. (Auditor) v. State, 75 O. S. 114, 78 N. E. Rep. 955]; 

Uhrlaub v. Cincinnati, et al., 8 O. C. C. (N.S.) 505, 18 O. C. D. 797 [affirmed, no report, 

72 O. S. 667]; Western Union Telegraph Co. v. Mayer, 28 O. S. 521; Railroad v. Chambers, 

73 O. S. 16; Bank v. Shields, 8 O. F. D. Ill, 59 Fed. 952. 



26 


Art.IV, § 3. CONSTITUTION OF THE UNITED STATES. 


* A person charged in any State with Treason, Felony, or other Crime, who 
shall flee from Justice, and be found in another State, shall on Demand of the 
executive Authority of the State from which he fled, be delivered up to be 
removed to the State having Jurisdiction of the Crime. 

Cohens v. Virginia, 19 U. S. (6 Wheat.) 264; Holmes v. Jennison, 39 U. S. (14 Pet.) 

540; Prigg v. Pennsylvania, 41 U. S. (16 Pet.) 539; Jones v. Van Zandt, 46 U. S. (5 How.) 

215; Taylor v. Taintor, 83 U. S. (16 Wall.) 366; Robb v. Connolly, 111 U. S. 624; Ex parte 

Reggel, 114 U. S. 642; Roberts v. Reilly, 116 U. S. 80; Cook v. Hart, 146 U. S. 183; Lascelles 

V. Georgia, 148 U. S. 537; Streep v. United States, 160 U. S. 128; Hyatt v. People, ex rel., 
188 U. S. 691; Munsey v. Clough, 196 U. S. 364; In re Strauss, 197 U. S. 324; Pettibone 
V. Nichols, 203 U. S. 192; Appleyard v. Massachusetts, 203 U. S. 222; McNichols v. Pease, 
207 U. S. 100; Bassing v. Cady, 208 U. S. 386; Pierce v. Creecy, 210 U. S. 387; Marbles 

V. Creecy, 215 U. S. 63; Work v. Corrington, 34 O. S. 64; Ex parte Sheldon, 34 O. S. 319; 

Ex parte Ammons, 34 O. S. 518; Wilcox v. Nolze, 34 O. S. 520; France v. State, 57 O. S. 1; 
Thomas v. Evans, 73 O. S. 140; In re Geo. Fairman, 3 O. N. P. (N.S.) 485; Schell v. 

Youngstown Iron, etc., Co., 4 O. C. C. CN.S.) 172, 16 O. C. D. 209; In the Matter of Hampton, 

Fugitive, 1 O. N. P. 181, 2 O. D. (N.P.) 579; State of Ohio v. Hudson, 2 O. N. P. 1, 2 
O. D. (N.P.) 41; Thomas v. Evans, 14 O. D. (N.P.) 336; In re Geo. D. Polly, 3 O. N. P. 
(N.S.) 265, 16 O. D. (N.P.) 427; Extradition of Mutchler, 8 O. N. P. (N.S.) 345, 19 
O. D. (N.P.) 587. 

® No Person held to Service or Labour in one State, under the Laws thereof, 
escaping into another, shall, in Consequence of any Law or Regulation therein, 
be discharged from such Service or Labour, but shall be delivered up on Claim 
of the party to whom such Service or Labour may be due. 

Groves v. Slaughter, 40 U. S. (15 Pet.) 449; Prigg v. Pennsylvania, 41 U. S. (16 Pet.) 
539; United States v. Reese, 92 U. S. (2 Otto) 214; Civil Rights Cases, 109 U. S. 3. 


Section 3 . ^ New States may be admitted by the Congress into this Union; 
but no new State shall be formed or erected within the Jurisdiction of any other 
State; nor any State be formed by the Junction of two or more States, or Parts 
of States, without the Consent of the Legislatures of the States concerned as 
well as of the Congress. 

Pollard V. Hagan, 44 U. S. (3 How.) 212; Permoli v. First Municipality, 44 U. S. 
(3 How.) 589; Scott v. Jones, 46 U. S. (5 How.) 343; Strader v. Graham, 51 U. S. (10 How.) 
82; W'ithers v. Buckley, 61 U. S. (20 How.) 84; Escanaba Co. v. Chicago, 107 U. S. 678; 
Van Brocklin v. Tennessee, 117 U. S. 151; Huse v. Glover, 119 U. S. 543; Sands v. River Co., 
123 U. S. 288; Boyd v. Nebraska, ex rel., 143 U. S. 135;'Ward v. Race Horse, 163 U. S. 504; 
Bollin V. Nebraska, 176 U. S. 83; Iowa v. Rood, 187 U. S. 87; Wedding v. Meyler, 192 

U. S. 573; Louisiana v. Mississippi, 202 U. S. 1; Coyle v. Oklahoma, 221 U. S. 559 [affirming 
Coyle V. Oklahoma, 113 Pac. 944.]. 

2 The Congress shall have Power to dispose of and make all needful Rules 
and Regulations respecting the Territory or other Property belonging to the 
United States; and nothing in this Constitution shall be so construed as to 
Prejudice any Claims of the United States, or of any particular State. 

McCulloch V. Maryland, 17 U, S. (4 Wheat.) 316; Cherokee Nation v. Georgia, 
30 U. S. (5 Pet.) 1; United States v. Gratiot, 39 U. S. (14 Pet.) 526; Dred Scott v. Sanford, 
60 U. S. (19 How.) 393; Snow v. United States, 85 U. S. (18 Wall.) 317; United States 

V. Waddell, 112 U. S. 76; Maxwell Land-Grant Case, 121 U. S. 325; United States v. 
Telephone Co., 128 U. S. 315; Romney v. United States, 136 U. S. 1; Mining Co. v. Rutter, 
177 U. S. 505; De Lima v. Bidwell, 182 U. S. 1; Downes v. Bidwell, 182 U. S. 244; Kean 
V. Canal Co., 190 U. S. 452; Dorr v. United States, 195 U. S. 138; Water Co. v. Baker, 
196 U. S. 119; Rassmussen v. United States, 197 U. S. 516; Kansas v. Colorado, 206 

U. S. 46, 206 U. S. 89; Light v. United States, 220 U. S. 523; Andrew v. Auditor, 5 O. N. P. 
123, 5 O. D. (N.P.) 242; Myers, et al., v. Manhattan Bank, 20 O. 283. 

Section 4 . The United States shall guarantee to every State in this Union 
a Republican Form of Government, and shall protect each of them against 
Invasion; and on Application of the Legislature, or of the Executive (when the 
Legislature can not be convened) against domestic Violence. 

Luther v. Borden, 48 U. S. (7 How.) 1; Texas v. White, 74 U. S. (7 Wall.) 700; 
Minor v. Happersett, 88 U. S. (21 Wall.) 162; United States v. Cruikshank, 92 U. S. 
(2 Otto) 542; Boyd v. Nebraska, ex rel., 143 U. S. 135; Forsyth v. Hammond, 166 U. S. 
506; Downes v. Bidwell, 182 U. S. 244; Kies v. Lowrey, 199 U. S. 233; South Carolina 

V. United States, 199 U. S. 437; Elder v. Colorado, ex rel., 204 U. S. 85; Coyle v. Oklahoma 
221 U. S. 559. 




27 

CONSTITUTION OF THE UNITED STATES. 


Art.V. 


ARTICLE V. 

The Congress, whenever two thirds of both Houses shall deem it necessary, 
shall propose Amendments to this Constitution, or, on the Application of the 
Legislatures of two thirds of the several States, shall call a Convention for pro¬ 
posing Amendments, which, in either Case, shall be valid to all Intents and 
Purposes, as Part of this Constitution, when ratified by the Legislatures of three 
fourths of the several States, or by Conventions in three fourths thereof, as the 
one or the other Mode of Ratification may be proposed by the Congress; Pro¬ 
vided that no Amendment which may be made prior to the Year One thousand 
eight hundred and eight shall in any Manner effect the first and fourth Clauses 
in the Ninth Section of the first Article; and that no State, without its Consent, 
shall be deprived of its equal Suffrage in the Senate. 

Knox V. Lee, 79 U. S. (12 Wall.) 457. 


ARTICLE VI. 

^ All Debts contracted and Engagements entered into, before the Adoption 
of this Constitution, shall be as valid against the United States under this Con¬ 
stitution, as under the Confederation. 

Lessee v. Kibbe, 39 U. S. (14 Pet.) 353; Dodge v. Woolsey, 59 U. S. (18 How.) 331, 

3 O. F. D. 300; Scott v. Sanford, 60 U. S. (19 How.) 393. 

2 This Constitution, and the Laws of the United States which shall be made 
in Pursuance thereof; and all Treaties made, or which shall be made, under the 
Authority of the United States, shall be the supreme Law of the Land; and 
the Judges in every State shall be bound thereby, any Thing in the Constitu¬ 
tion or Laws of any State to the Contrary notwithstanding. 

Ware v. Hylton, 1 U. S. (3 Dali. 199) 99; Cohens v. Virginia, 5 U. S. (6 Wheat. 264) 
90; Nation v. Georgia, 30 U. S. (5 Pet.) 1; Fox v. State, 46 U. S. (5 How.) 410; Fletcher 
V. State, 46 U. S. (5 How.) 504; Smith v. Turner, 48 U. S. (7 How.) 283; Mayor v. Cooper, 
73 U. S. (6 Wall.) 247; Society v. Coite, 73 U. S. (6 Wall.) 594; The Cherokee Tobacco, 
78 U. S. (11 Wall.) 616; Knox v. Lee, 79 U. S. (12 Wall.) 457; Bank v. Dearing, 91 

U. S. (1 Otto) 29; Walker v. Sauvinet, 92 U. S. (2 Otto) 90; Telegraph Co. v. Telegraph 
Co., 96 U. S. (6 Otto) 1; Hauenstein v. Lynham, 100 U. S. (10 Otto) 483; In re Neagle, 
135 U. S. 1; Railway v. Hefley, 158 U. S. 98; Brown v. Walker, 161 U. S. 591; Mining Co. 

V. Rutter, 177 U. S. 505; De Lima v. Bidwell, 182 U. S. 1; Downes v. Bidwell, 182 U. S. 244; 
Storti V. Massachusetts, 183 U. S. 138; South Carolina v. United States, 199 U. S. 437; 
Armstrong v. Treas. of Athens County, 10 O. 235; United States v. In-Lot, 4 O. F. D. 253, 
Fed. Cases, 15441; State v. Vanderpool, 39 O. S. 273; Naylor v. P., C., C. & St. L. Ry. Co., 

4 O. C. C. (N.S.) 437, 16 O. C. D. 277 [affirmed, P., C., C. & St. L. Ry. v. Naylor, 73 O. S. 
115, 76 N. E. Rep. 505, 3 L. R. A. 473]; Estate of Arduino, 9 O. N. P. (N.S.) 369, 20 
O. D. (N.P.) 461. 

* The Senators and Representatives before mentioned, and the Members of 
the several State Legislatures, and all executive and judicial Officers, both of 

the United States and of the several States, shall be bound by Oath or Affirma¬ 

tion, to support this Constitution; but no religious Test shall ever be required 
as a Qualification to any Office or public Trust under the United States. 

United States v. Insurance Co., 89 U. S. (22 Wall.) 99. 


ARTICLE VII. 

The Ratification of the Conventions of nine States, shall be sufficient for the 
Establishment of this Constitution between the States so ratifying the Same. 
Done in Convention by the Unanimous Consent of the States present the Seven¬ 
teenth Day of September in the Year of our Lord one thousand seven hun¬ 
dred and Eighty seven, and of the Independence of the United States of 




Art.I. 


CONSTITUTION OF TIIP] UNITED STATES. 


America the Twelfth, 
our Names, 


In Witness whereof We have hereunto subscribed 

G° : Washington— 

Presidt. and Deputy from Virginia 
New Hampshire. 


John Langdon 
Nathaniel Gorham 


Nicholas Gilman 

Massachusetts. 

Rufus King 


Connecticut. 

Wm. Saml. Johnson Roger Sherman 

New York. 

Alexander Hamilton 



New Jersey. 

Wil: Livingston 

Wm. Paterson 

David Brearley 

Jona: Dayton 


Pennsylvania. 

B. Franklin 

Thos. Fitzsimons 

Thomas Mifflin 

Jared Ingersoll 

Robt. Morris 

James Wilson 

Geo. Clymer 

Gouv Morris 


Delaware. 

Geo: Read 

Gunning Bedford Jun 
John Dickinson 

Richard Bassett 
Jaco: Broom 

Maryland. 

James McHenry 

Dan of St Thos Jenifer 

Danl. Carroll 

Virginia. 

John Blair— 

James Madison Jr 


North Carolina. 


Wm. Blount Hu Williamson 

Richd. Dobbs Spaight 

South Carolina. 


J. Rutledge Charles Pinckney 

Charles Cotesworth Pinckney Pierce Butler 


William Few 
Attest 


Georgia. 

Abr Baldwin 

WILLIAM JACKSON Secretary 


articles in addition to, and amendment of, the constitution of the 
united states of AMERICA, PROPOSED BY CONGRESS, AND RATIFIED BY THE 
LEGISLATURES OF THE SEVERAL STATES PURSUANT TO THE FIFTH ARTICLE 
OF THE ORIGINAL CONSTITUTION. 

[ARTICLE I.] 

Congress shall make no law respecting ’ an establishment of religion, or 
prohibiting the free exercise thereof; or ^ abridging the freedom of speech, or of 
the press ; or ® the right of the people peaceably to assemble, and to petition 
the Government for a redress of grievances. 

1 Church V. United States, 143 U. S. 457; Bradfield v. Roberts, 175 U. S. 291; Maxwell 
V. Dov/, 176 U. S. 581; Downes v. Bidwell, 182 U. S. 244; Quick Bear v, Leupp, 210 U. S. 50; 




29 

CONSTITUTION OF THE UNITED STATES. 


Art.II. 


Twining- v. New Jersey, 211 U. S. 78; Gompers v. Bucks Stove and Range Co., 221 U. S. 
418. 

2 Horner v. United States. 143 U. S. 207; Robertson v. Baldwin, 165 U. S. 275; Downes 
V. Bidwell, 182 U. S. 244; United States, ex rel., v. Williams, 194 U. S. 279. 

3 United States v. Cruikshank, 92 U. S. 542. 


[ARTICLE II.] 

A well regulated Militia, being necessary to the security of a free State, the 
right of the people to keep and bear Arms, shall not be infringed. 

Presser v. Illinois, 116 U. S. 252; Logan v. United States, 144 U. S. 263; Miller v. 
Texas, 153 U. S. 535; Robertson v. Baldwin, 165 U. S. 275; Twining v. New Jersey, 211 
U. S. 78. 


[ARTICLE III.] 

No Soldier shall, in time of peace be quartered in any house, without the 
consent of the Owner, nor in time of war, but in a manner to be prescribed 
by law. 

Maxwell v. Dow, 176 U. S. 581; Twining v. New Jersey, 211 U. S. 78. 


[ARTICLE IV.] 

The right of the people to be secure in their persons, houses, papers, and 
effects, against unreasonable searches and seizures, shall not be violated, and 
no Warrants shall issue, but upon probable cause, supported by Oath or affirm¬ 
ation, and particularly describing the place to be searched, and the persons or 
things to be seized. 

Luther v. Borden, 48 U. S. (7 How.) 1; Lessee v. Improvement Co., 59 U. S. (18 
How.) 272; Boyd v. United States, 116 U. S. 616; Spies v. Illinois, 123 U. S. 131; Counselman 
V. Hitchcock, 142 U. S. 547; West v. Cabell, 153 U. S. 78; Miller v. Texas, 153 U. S. 535; 
United States v. Zucker, 161 U. S. 475; Brown v. Walker (dissenting opinion), 161 U. S. 
591; Stone v. United States, 167 U. S. 178; Bram v. United States, 168 U. S. 532; Maxwell 
V. Dow, 176 U. S. 581; Fairbank v. United States, 181 U. S. 283; School v. McAnnulty, 
187 U. S. 94; Adams v. New York, 192 U. S. 585; Commission v. Baird, 194 U. S. 25; Morris 
V. Hitchcock, 194 U. S. 384; Hale v. Henkel, 201 U. S. 43; Nelson v. United States, 201 

U. S. 92; Rendering Co. v. Vermont, 207 U. S. 541; Tobacco Co. v. Werckmeister, 207 U. S. 
284; Twining v. New Jersey, 211 U. S. 78; Packing Co. v. Arkansas, 212 U. S. 322; Rhodus 

V. Manning, 217 U. S. 597; Baltimore and Ohio R. R. v. Interstate Commerce Commission, 
221 U. S. 612; Flint v. Stone, Tracy Co., 220 U. S. 107; Eichenlaub v. State, 36 O. S. 140; 
Cleveland Electric Co. v. Hitchens, 3 O. N. P. (N.S.) 57; Kaiser v. Walsh, 4 O. N. P. (N.S.) 
507, 17 O. D. (N.P.) 324; Inquiry from Grand Jury, In re, 8 O. L. R. 188; United States 
V. Carter, 5 O. F. D. 592, 14 Bull. 191. 


[ARTICLE V.] 

No person shall be held ^ to answer for a capital, or otherwise infamous crime, 
unless on a presentment or indictment of a Grand Jury, except in cases arising 
in the land or naval forces, or in the Militia, when in actual service in time of 
War or public danger; nor ^ shall any person be subject for the same offense to 
be twice put in jeopardy of life or limb; nor shall be compelled in any Crim¬ 
inal Case to be a witness against himself, nor ® be deprived of life, liberty, or 
propertv, without due process of law; nor ^ shall private property be taken for 
public use, without just compensation. 

1 Houston V. Moore, 18 U. S. (5 Wheat.) 1; United States v. Reid, 53 U. S. (12 How.) 
361; Dynes v. Hoover, 61 U. S. (20 How.) 65; Twitchell v. Commonwealth, 74 U. S. 
(7 Wall.) 321; Ex parte Reed, 100 U. S. 13; Ex parte Mason, 105 U. S. 696; Ex parte 
Wilson, 114 U, S. 417; Boyd v. United States, 116 U. S. 616; Parkinson v. United States, 
121 U. k 281; Eilenbecker v. Plymouth County, 134 U. S. 31; In re Claasen, 140 U. S. 200; 
Counselman v, Hitchcock, 142 U. S. 547; O’Neill v. Vermont, 144 U. S. 323; United 
States V. Patterson, 150 U. S. 65; Johnson v. Sayre, 158 U. S. 109; Brown v. Walker, 161 
U. S. 591; Wong Wing v. United States, 163 U. S. 228; Talton v. Mayes, 163 U. S. 376; 
United States v. Ball, 163 U. S. 662; District v. Bradley, 164 U. S. 112; Turnpike Co. v. 
Sandford, 164 U. S. 578; Robertson v. Baldwin, 165 U. S. 275; Gibson v. United States, 
166 U. s’. 269; In re Chapman, 166 U, S. 661; Stone v. United States, 167 U. S. 178; 




30 

Art.V. CONSTITUTION OF THE UNITED STATES. 


Bram v. United States, 168 U. S. 632; Thompson v. Utah, 170 U. S. 343; Markuson v. 
Boucher, 175 U. S. 184; Bolin v. Nebraska, 176 U. S. 83; Maxwell v. Dow, 176 U. S. 581; 
Hawaii v. Mankichi, 190 U. S. 197; Adams v. New York, 192 U. S. 585; Commission 
V. Baird, 194 U. S. 25; Beavers v. Henkel, 194 U. S. 73; United States, ex rel., v. 
Williams, 194 U. S. 279; Rassmussen v. United States, 197 U. S. 516; Jack v. Kansas, 
199 U. S. 372; Trono v. United States, 199 U. S. 521; Hale v. Henkel, 201 U. S. 43; 

McAlister v. Henkel, 201 U. S. 90; Nelson v. United States, 201 U. S. 92; In re 

Moran, 203 U. S. 96; Barrington v. Missouri, 205 U. S. 483; Rendering Co. v. Vermont, 

207 U. S. 541; Twining v. New Jersey, 211 U. S. 78; Rhodus v. Manning, 217 U. S. 597; 

Holt V. United States, 218 U. S. 245; Briscoe v. District of Columbia, 221 U. S. 547 

[affirming 32 App. D. C. 167]; Matter of Harris, 221 U. S. 274 [distinguishing Counselman 
V. Hitchcock, 142 U. S. 547]; Wilson v. United States, 221 U. S. 361; Gompers v. Bucks 
Stove and Range Co., 221 U, S. 418; American Lithographic Co. v. Werckmeister, 221 

U. S. 603; Baltimore and Ohio R. R. v. Interstate Commerce Commission, 221 U. S. 612; 

Prescott V. State, 19 O. S. 184; Coles v. State of Ohio, 3 O. C. C. (N.S.) 420; 13 O. C. D. 313; 
Wade V. State, 15 O. C. D. 279; Steuer v. McConnell, 8 O. N. P. 205, 10 O. D. (N.P.) 573; 
State V. Strong, 12 O. D. (N.P.) 698; Inquiry from Grand Jury, In re, 8 O. L. R. 188; 
Dille V. State, 34 O. S. 617; Kaiser v, Walsh, 4 O. N. P. (N.S.) 507, 17 O. D. (N.P.) 324; 

August V. Finnerty, 10 O. C. C. (N.S.) 433, 20 O. C. D. 330; United States v. Hung Chang, 

14 O. F. D. 257, 126 Fed. 400. 

2 Fox V. Ohio, 46 U. S. (5 How.) 410; Ex parte Lange, 85 U. S. (18 Wall.) 163; 
Ex parte Bigelow, 113 U. S. 328; Bohanan v. Nebraska, 118 U. S. 231, 125 U. S. 692; Simmons 

V. United States, 142 U. S. 148; Thompson v. United States, 155 U. S. 271; Carter v. 

McClaughry, 183 U. S. 365; Kepner v. United States, 195 U. S. 100; Trono v. United States, 
199 U. S. 521; Burton v. United States, 202 U. S. 344; Serra v. Mortiga, 204 U. S. 470; 
Grafton v. United States, 206 U. S. 333; Taylor v. United States, 207 U. S. 120; Shoener 

V. Pennsylvania, 207 U. S. 188; Flemister v. United States, 207 U. S. 372; Bassing v. Cady, 

208 U. S. 386; Keerl v. Montana, 213 U. S. 135; Brantley v. Georgia, 217 U. S. 284; Shevlin 
Co. V. Minnesota, 218 U. S. 57; State v. Cox, 11 O. N. P. (N.S.) 305. 

3 Holmes v. Jennison, 39 U. S. (14 Pet.) 540; Groves v. Slaughter, 40 U. S. (15 Pet.) 

449; Luther v. Borden, 48 U. S. (7 How.) 1; Den v. Land Company, 59 U. S. (18 How.) 

272; Scott v. Sanford, 60 U. S. (19 How.) 393; Roosevelt v. Meyer, 68 U. S. (1 Wall.) 512; 
Legal Tender Cases, 79 U. S. (12 Wall.) 457; Slaughter House Cases, 83 U. S. (16 Wall.) 
36; Davidson v. New Orleans, 96 U. S. 97; Barrett v. Holmes, 102 U. S. 651; Kelly v. 
Pittsburgh, 104 U. S. 78; United States v. Lee, 106 U. S. 196; Ex parte Wall, 107 U. S. 265; 
Ex parte Bigelow, 113 U. S. 328; Spies v. Illinois, 123 U. S. 131; In re Sawyer, 124 

U. S. 200; Callan v. Wilson, 127 U. S. 540; Railway v. Alabama, 128 U. S. 96; Manning 

V. French, 133 U. S. 186; Ludeling v. Chaffe, 143 U. S. 301; Hallinger v. Davis, 146 U. S. 
314; Fong v. United States, 149 U. S. 698; Sparf v. United States, 156 U. S. 51; United 
States V. Traffic Association, 171 U. S. 505; Meyer v. Richmond, 172 U. S. 82; Insurance 
Co. V. Spratley, 172 U. S. 602; Paper Co. v. Watson, 173 U. S. 443; Maxwell v. Dow, 176 

U. S. 581; Chapin v. Fye, 179 U. S. 127; Fairbank v. United States, 181 U. S. 283; French 

V. Paving Co., 181 U. S. 324; Wight v. Davidson, 181 U. S. 371; Tonawanda v. Lyon, 181 

U. S. 389; Cass Co. v. Detroit, 181 U. S. 396; Detroit v. Parker, 181 U. S. 399; Downes 

V. Bidwell, 182 U. S. 244; Dairy Co. v. Ohio, 183 U. S. 238; Carter v. McClaughry, 183 

U. S. 365; Life Ass’n v. Mettler, 185 U. S. 308; McFaddin v. Buel Co., 185 U. S. 505; Bank 

V. Moyses, 186 U. S. 181; School v. McAnnulty. 187 U. S. 94; Cummings v. Chicago, 188 
U. S. 410; Hibben v. Smith, 191 U. S. 310; Bedford v. United States, 192 U. S. 217; Railway 
Co V. Minnesota, 193 U. S. 53; Commission v. Baird, 194 U. S. 25; State, ex rel., v. Dollison, 
194 U. S. 445, 14 O. F. D. 380; McCray v. United States, 195 U. S. 27, 14 O. F. D. 385; Fayer- 
weather v. Riich, 195 U. S. 276; Telegraph Co. v. Railway, 195 U. S. 540; Supply Co. v. 
Power Co., 197 U. S. 299; United States v. Ju Toy, 198 U. S. 253; Oil Co. v. Arnandet, 199 U. 
S. 182; South Carolina v. United States, 199 U. S. 437; Millard v. Roberts, 202 U. S. 429; 
United States v. Heinszen, 206 U. S. 370; Hunter v. Pittsburg, 207 U. S. 161; Tobacco Co. v. 
Werckmeister, 207 U. S. 284; Bitterman v. Railway, 207 U. S. 205; Adair v. United States, 208 
U, S. 161; Garfield v. Goldsby, 211 U. S. 249; Twining v. New Jersey, 211 U. S. 78; Shung v. 
United States, 212 U. S. 566; United States, ex rel,, v. Railway, 213 U. S. 366; District of 
Columbia v. Brooke, 214 U. S. 138; Navigation Co. v. Stranahan, 214 U. S. 320; Sanchez v. 
United States, 216 U. S. 167; Oil Co. v. Texas, 217 U. S. 114; United States v. Heinze, 218 
U. S. 532; Railway v. Connersville, 218 U. S. 336; Flint v. Stone, Tracy Co., 220 U. S. 107; 
McNulta V. Ralston, 5 O. C. C. (N.S.) 330, 3 O. C. D. 163; Quigley v. State, 5 O. C. C. 
(N.S.) 638, 3 O. C. D. 310 (1891) [affirmed, no report, 27 Bull. 332]; Beamer v. State, 21 O, C. 
C. 440, 12 O. C. D. 4; Taylor v. Wapakoneta, 16 O. C. D, 285; State, ex rel., v. Commissioners, 
8 O. C. C. (N.S.) 169, 18 O. C. D. 212; Mitchell v. Commissioners, 5 O. N. P. 158, 5 O. D. (N.P.) 
262; Fagin v. Ohio Plumane Society, 6 O. N. P. 357, 9 O. D. (N.P.) 341; French v. Shirley, 7 
O. N. P. 26, 9 O. D. (N.P.) 181; Gawn v. Wilson, 7 O. N. P. 33, 9 O. D. (N.P.) 683; Kealey v. 
Faulkner, 7 O. N. P. (N.S.) 49, 18 O. D. (N.P.) 498; Ley v. Kirtley, 5 O. N. P. (N.S.) 529, 
18 O. D. (N.P.) 280; United States v. Tn-Lot, Fed. Cases, 15441, 4 O. F. D. 253; Scott v. 
Toledo, 36 Fed. 385, 6 O. F. D. 192; United States v. Mitchell, 58 Fed. 993, 8 O. F. D. 71; 
Myers v. Shields, 61 Fed. 713, 8 O. F. D. 239, 31 Bull. 336. 

‘Barron v. Baltimore, 32 U. S. (7 Pet.) 243; Bridge Co. v. Dix, 47 U. S. (6 How.) 507; 
Withers v. Buckley, 61 U. S. (20 How.) 84; Hepburn v. Griswold, 75 U. S. (8 Wall.) 603; 
Kohl V. United States, 91 U. S. 367; United States v. Jones, 109 U. S. 513; Gesler v. 
Commissioners, 146 U. S. 646; Navigation Co. v. United States, 148 U. S. 312; Hill v. 
United States, 149 U. S. 593; Railway v. Gill, 156 U. S. 649; Brown v, Walker, 161 U.' S. 




31 

CONSTITUTION OF THE UNITED STATES. Art.VI. 


591; Gibson v. United States, 166 U. S. 269; Bauman v. Ross, 167 U. S. 548; Muse v. Hotel 
Co., 168 U. S. 430; Wilson v. Lambert, 168 U. S. 611; Scudder v. Comptroller, 175 

U. S. 32; Scranton v. Wheeler, 179 U. S. 141; Wight v. Davidson, 181 U. S. 371; Detroit 

V. Parker, 181 U. S. 399; United States v. I^ynah, 188 U. S. 445; Williams v. Parker, 
188 U. S. 491; Shooting Club v. Caspersen, 193 U. S. 189; Morris v. Hitchcock, 194 U. S. 
384; Shepard v. Barron, 194 U. S. 553; McCray v. United States, 195 U. S. 27; Rendering 
Co. V. Vermont, 207 U. S. 541; Railway v. Kansas, ex rel., 216 U. S. 262; Bridge Co. v. 
United States, 216 U. S. 177; Sanchez v. United States, 216 U. S. 167; Hooe v. United States, 
218 U. S. 322; Louisville and Nashville R. R. v. Mottley, 219 U. S. 467; United States v. 
Grizzard, 219 U. S. 180; Chicago, Burlington and Quincy R. R. v. McGuire, 219 U. S. 549. 


[ARTICLE VI.] 

In all criminal prosecutions, the accused shall enjoy the right to a speedy 
and public trial, by an impartial jury of the State and district wherein the 
crime shall have been committed, which district shall have been previously 
ascertained by law, and to be informed of the nature and cause of the accusa¬ 
tion ; to be confronted with the witnesses against him; to have compulsory 
process for obtaining Witnesses in his favor, and to have the Assistance of 
Counsel for his defence. 

United States v. Reid, 53 U. S. (12 How.) 361; United States v. Dawson, 56 U. S 
(15 How.) 467; Murray v. Improvement Co., 59 U. S. (18 How.) 272; Twitchell v. Common¬ 
wealth, 74 U. S. (7 Wall.) 321; United States v. Cruikshank, 92 U. S. (2 Otto) 542; 
United States v. Railway, 98 U. S. (8 Otto) 569; Reynolds v. United States, 98 U. S. 
(8 Otto) 145; Ex parte Virginia, 100 U. S. (10 Otto) 339; Manufacturing Co. Petitioner, 
108 U. S. 401; Spies v. Illinois, 123 U. S. 131; In re Sawyer, 124 U. S. 200; Callan v. Wilson, 
127 U. S. 540; Eilenbecker v. County, 134 U. S. 31; In re Palliser, 136 U. S. 257: Cook 
V. United States, 138 U. S. 157; Ball v. United States, 140 U. S. 118; United States v. 
Van Duzee, 140 U. S. 169; Horner v. United States, 143 U. S. 207; Fong Yue Ting v. 
United States, 149 U. S. 698; United States v. Patterson, 150 U. S. 65; Sparf v. United 
States, 156 U. S. 51; Bergemann v. Backer, 157 U. S. 655; Rosen v. United States, 161 

U. S. 29; United States v. Zucker, 161 U. S. 475; Wing v. United States, 163 U. S. 228; 
Publishing Co. v. Fisher, 166 U. S. 464; Barrett v. United States, 169 U. S. 218; Thompson 

V. Utah, 170 U. S. 343; Kirby v. United States, 174 U. S. 47; Markuson v. Boucher, 175 

U. S. 184; Maxwell v. Dow, 176 U. S. 581; Motes v. United States, 178 U. S. 458; Hawaii 

V. Mankichi. 190 U. S. 197: United States v. Sin.g Tuck, 194 U. S. 161; West v. Iiouisiana, 
194 U. S. 258: United States, ex rel., v. Williams, 194 U. S. 279; Ohio, ex rel., v. Dollison, 
194 U. S. 445; Schick v. United States, 195 U. S. 65; Dorr v. United States, 195 U. S. 
138; Burton v. United States, 196 U. S. 283; Rassmussen v. United States, 197 U. S. 516; 
Burton v. United States, 202 U. S. 344; Serra v. Mortiga, 204 U. S. 470; Tinsley v. Treat, 
205 U. S. 20; Ughbanks v. Armstrong, 208 U. S. 481; Packing Co. v. United States, 209 
U. S. 56; Twining v. New Jersey, 211 U. S. 78; Haas v. Henkel, 216 U. S. 462; Dille v. 
State, 34 O. S. 617; Kaiser v. Walsh, 4 O. N. P. (N.S.) 507, 17 O. D. (N.P.) 324; In re 
McKnight, 7 O. F. D. 286, 52 Fed. 799; United States v. Hung Chang, 14 O. F. D. 257, 126 
Fed. 400; State v. Dollison, 14 O. F. D. 380, 194 U. S. 445. 


[ARTICLE VII.] 

In suits at common law, where the value in controversy shall exceed twenty 
dollars, the right of trial by jury shall be preserved, and no fact tried by a jury 
shall be otherwise re-examined in any Court of the United States, than according 
to the rules of the common law. 

Bank v. Okely, 17 U. S. (4 Wheat.) 235; Bank v. Dudley, 27 U. S. (2 Pet.) 492; Parsons 
V. Armor, 28 U. S. (3 Pet.) 413; Parsons v. Bedford, 28 U. S. (3 Pet.) 433; Livingston v. 

Moore, 32 U. S. (7 Pet.) 469; Hepburn v. Dubois, 37 U. S. (12 Pet.) 345; Cary v. Curtis, 

44 U. S. (3 How.) 236; Waring v. Clarke, 46 U. S. (5 How.) 441; Navigation Co. v. Bank, 
47 U. S. (6 How.) 344; Luther v. Borden, 48 U. S. (7 How.) 1; Webster v. Reid, 52 U. S. 
(11 How.) 437; Shields v. Thomas, 59 U. S. (18 How.) 253; Murray v. Improvement Co., 
59 U. S. (18 How.) 272; Dodge v. Woolsey, 59 U. S. (18 How.) 331; Scott v. Sanford, 60 
U. S. (19 How.) 393; Jackson v. Steamboat Magnolia, 61 U. S. (20 How.) 296; Barney v. 
Schmeider, 76 U. S. (9 Wall.) 248; The Justices v. Murray, 76 U. S. (9 Wall.) 274; Kearney 
V Core, 79 U. S. (12 Wall.) 275; Legal Tender Cases, 79 U. S. (12 Wall.) 457; Ex parte 
Lange, 85 U. S. (18 Wall.) 163; Hershfield v. Griffith, 85 U. S. (18 Wall.) 657; Insurance 
Co. V. Dunn, 86 U. S. (19 Wall.) 214; Walker v. Sauvinet, 92 U. S. (2 Otto) 90; Insurance 
Co. V. Boon, 95 U. S. (5 Otto) 117; Pearson v. Yewdall, 95 U. S. (5 Otto) 294; The “Abbots¬ 
ford,” 98 U. S. (8 Otto) 440; McElrath v. United States, 102 U. S. 426; Boogher v. Insurance 
Co., 103 U. S. (12 Otto) 90; Root v. Railway. 105 U. S. (15 Otto) 189; The “Francis Wright,” 

105 U. S. (15 Otto) 381; Martinton v. Fairbanks, 112 U. S. 670; Auffmordt v. Hedden, 137 

U. S. 310; Whitehead v. Shattuck, 138 U. S. 146; Lincoln v. Power, 151 U. S. 436; Sparf 

V. United States, 156 U, S. 51; Railway v. Commission, 162 U. S. 197; Grayson v. Lynch, 
163 U. S. 468; Walker v. Railroad, 165 U. S. 593; Railroad v. Chicago, 166 U. S. 226; Pub- 



Art. VIII. 


32 

CONSTITUTION OF THE UNITED STATES. 


lishing Co. v. Fisher, 166 U. S. 464; Springville v. Thomas, 166 U. S. 707; Thompson v. 
ITtah, 170 U. S. 343; Bank v. Guthrie, 173 U. S. 528; Traction Co. v. Hof, 174 U. S. 1; 
Maxwell v. Dow, 176 U. S. 581; Black v. Jackson, 177 U. S. 349; Chapin v. Fye, 179 U. S. 
127; Downes v. Bidwell, 182 U. S. 244; Elliott v. Toeppner, 187 U. S. 327; Rassmussen v. 
United States, 197 U. S. 516; Twining v. New Jersey, 211 U. S. 78; Mitchell’s v. Commis¬ 
sioners, 5 O. N. P. 158, 5 O. D. tN.P.) 262; Haunts v. Lauman Co., 2 O. N. P. (N.S.) 405, 
15 O. D. (N.P.) 64; Dodge v. Woolsey, 3 O. F. D. 300, 59 U. S. (18 How.) 331; Lowry v. 
Mt. Adams and Eden Park Incline Plane Ry. Co., 9 O. F. D. 82, 68 Fed. 827; Klever v. 
Seawall, 9 O. F. D. 95. 


[ARTICLE VIIL] 

^ Excessive bail shall not be required, nor excessive fines imposed, nor ^ cruel 
and unusual punishments inflicted. 

^Evans V. Boiler, 4 U. S. (4 Dali.) 342; Ex parte Watkins, 32 U. S. (7 Pet.) 568; 
Eilenbecker v. County, 134 U. S. 31; Maxwell v. Dow, 176 U. S. 581. 

= Wilkerson v. Utah, 99 U. S. (9 Otto) 130; Manning v. French, 133 U. S. 186; In re 
Kemmler, 136 U. S. 436; McElvaine v. Brush, 142 U. S. 155; O’Neil v. Vermont, 144 U. S. 
323; Johnson v. Sayre, 158 U. S. 109; Ughbanks v. Armstrong, 208 U. S. 481; Twining 
V. New Jersey, 211 U. S. 78; Oil Co. v. Texas, 212 U. S. 86; Weems v. United States, 217 
U. S. 349. 


[ARTICLE IX.] 

The enumeration in the Constitution, of certain rights, shall not be con¬ 
strued to deny or disparage others retained by the people. 

Evans v. Bollen, 4 U. S. (4 Dali.) 342; Scott v. Sanford, 60 U. S. (19 How.) 393; 
Roosevelt v. Meyer, 68 U. S. (1 Wall.) 512. 

[ARTICLE X.] 

The powers not delegated to the United States by the Constitution, nor pro¬ 
hibited by it to the States, are reserved to the States respectively, or to the 
people. 

McCulloch V. Maryland, 17 U. S. (4 Wheat.) 316; Passenger Cases, 48 U. S. (7 How.) 
283; Dodge v. Woolsey, 59 U. S. (18 How.) 331; Scott v. Sanford, 60 U. S. (19 How.) 393; 
Roosevelt v. Meyer, 68 U. S. (1 Wall.) 512; Bank'v. Fenno, 75 U. S. (8 Wall.) 533 [dissent¬ 
ing opinion]; Hepburn v. Griswold, 75 U. S. (8 Wall.) 603; Legal Tender Cases, 79 U. S. 
(12 Wall.) 457; Palmer v. Marston, 81 U. S. (14 Wall.) 10; Steamship Co. v. Tinker, 94 
U. S. (4 Otto) 238; Ex parte Virginia, 100 U. S. (10 Otto) 339 [dissenting opinion]; 
United States v. Harris, 106 U. S. (16 Otto) 629; Civil Rights Cases, 109 U. S. 3; Leisy 
v. Hardin, 135 U. S. 100; Railroad v. Baugh, 149 U. S. 368; Ting v. United States, 149 

U. S. 698; Downes v. Bidwell, 182 U. S. 244; Lottery Case, 188 U. S. 321; Securities Co. 

V. United States, 193 U. S. 197; McCray v. United States, 195 U. S. 27; Kansas v. Colorado, 
206 U. S. 46; Railway v. State, 11 O. C. C. (N.S.) 482, 21 O. C. D. 20; McCray v. United 
States, 14 O. F. D. 385, 195 U. S. 27. 


[ARTICLE XL] 

The Judicial power of the United States shall not be construed to extend to 
any suit in law or equity, commenced or prosecuted against one of the United 
States by Citizens of another State, or by Citizens or Subjects of any Foreign 
State. 

Cohens v. Virginia, 19 U. S. (6 Wheat.) 264; Osborn v. Bank, 22 U. S. (9 Wheat.) 738; 
Bank v. Bank, 22 U. S. (9 Wheat.) 904; Slaves v. Madrazo, 26 U. S. (1 Pet.) 110; Cherokee 
Nation v. Georgia, 26 U. S. (5 Pet.) 1; New Jersey v. New York, 30 U. S. (5 Pet.) 284; 
Ex parte Madrazzo, 32 U. S. (7 Pet.) 627; McNutt v. Bland, 43 U. S. (2 How.) 9; Luther 
V. Borden, 32 U. S. (7 How.) 1; Florida v. Georgia, 58 U. S. (17 How.) 478; Railroad Co. 
V. Mississippi, 102 U. S. (12 Otto) 135; United States v. I.ee, 106 U. S. (16 Otto) 196; 
Louisiana v. Jumel, 107 U. S. (17 Otto) 711; Ames v. Kansas, ex rel.. Ill U. S. 449; 
Marye v. Parsons, 114 U. S. 325; In re Ayers, 123 U. S. 443; County v. Luning, 133 U. S. 
529; Hans v. Louisiana, 134 U. S. 1; Pennoyer v. McConnaughy, 140 U. S. 1; United States 
V. Texas, 143 U. S. 621; In re Tyler, 149 U. S. 164; Reagan v. Trust Co., 154 U. S. 362; 
Scott V. Donald, 165 U. S. 107; Tindal v. Weslev, 167 U. S. 204; Smyth v. Ames, 169 U. S. 
466; Fitts v. McGhee, 172 U. S. 516; Louisiana v. Texas, 176 U. S. 1; Wesley v. Bells, 177 

U. S. 370; Railroad Co. v. Adams, 180 U. S. 28; Prout v. Starr, 188 U. S. 537; South Dakota 

V. North Carolina. 192 U. S. 286; Barney v. New York City, 193 U. S. 430; Supply Co. v. 
Bruce, 194 U. S. 601; Traction Co. v. Mining Co., 196 U. S. 239; Iron Co. v. Iron Co., 197 



33 

CONSTITUTION OF THE UNITED STATES. 


Art.XII. 


U. S. 463; Graham v. Folsom, 200 U. S. 248; Gunter v. Railroad Co., 200 U. S. 273; Virginia 

V. West Virginia, 206 U. S. 290; Ex parte Young, 209 U. S. 123; Murray v. Distilling Co., 
213 U. S. 151; Ludwig v. Telegraph Co., 216 U. S. 146; Telegraph Co. v. Andrews, 216 U. S. 
165; Herndon v. Railway, 218 U. S. 135; Forging & Tool Co. v. Griffith, 5 O. N. P. (N.S.) 
566, 18 O. D. (N.P.) 261; Arbuckle v. Blackburn, 13 O. F. D. 44, 51 C. C. A. 122, 113 Fed. 616. 


[ARTICLE XII.] 

The Electors shall meet in their respective states, and vote by ballot for 
President and Vice-President, one of whom, at least, shall not be an inhabitant 
of the same state with themselves; they shall name in their ballots the person 
voted for as President, and in distinct ballots the person voted for as Vice- 
President, and they shall make distinct lists of all persons voted for as Presi¬ 
dent, and of all persons voted for as Vice-President, and of the number of votes 
for each, which lists they shall sign and certify, and transmit sealed to the seat 
of the government of the United States, directed to the President of the 
Senate;—The President of the Senate shall, in the presence of the Senate and 
House of Representatives, open all the certificates and the votes shall then be 
counted;—The person having the greatest number of votes for President, shall 
be the President, if such number be a majority of the whole number of Electors 
appointed; and if no person have such majority, then from the persons having 
the highest numbers not exceeding three on the list of those voted for as Presi¬ 
dent, the House of Representatives shall choose immediately, by ballot, the 
President. But in choosing the President, the votes shall be taken by states, 
the representation from each state having one vote; a quorum for this purpose 
shall consist of a member or members from two-thirds of the states, and a 
majority of all the states shall be necessary to a choice. And if the House of 
Representatives shall not choose a President whenever the right of choice shall 
devolve upon them, before the fourth day of March next following, then the 
Vice-President shall act as President, as in the case of the death or other con¬ 
stitutional disability of the President. The person having the greatest number 
of votes as Vice-President, shall be the Vice-President, if such number be a 
majority of the whole number of Electors appointed, and if no person have a 
majority, then from the two highest numbers on the list, the Senate shall 
choose the Vice-President; a quorum for the purpose shall consist of two-thirds 
of the whole number of Senators, and a majority of the whole number shall 
be necessary to a choice. But no person constitutionally ineligible to the office 
of President shall be eligible to that of Vice-President of the United States. 

In re Green, 134 U. S. 377; McPherson v. Blacker. 146 U. S. 1. 


ARTICLE XIII. 

Section 1. Neither slavery nor involuntary servitude, except as a punish¬ 
ment for crime whereof the party shall have been duly convicted, shall exist 
within the United States, or any place subject to their jurisdiction. 

Osborn v. Nicholson, 80 U. S. (13 Wall.) 654; Slaughter House Cases, 83 U. S. 
(16 Wall.) 36; Boyce v. Tabb, 85 U. S. (18 Wall.) 546; United States v. Reese, 92 U. S. 
(2 Otto) 214 [dissenting opinion]; Ex parte Virginia, 100 U. S. (10 Otto) 339; Neal v. 
Delaware, 103 U. S. (13 Otto) 370 [dissenting opinion]; United States v. Harris, 106 U. S. 
629; United States v. Stanley, 109 U. S. 3; Elk v. Wilkins, 112 U. S. 94; Ex parte Wilson, 
114'u. S. 417; Baldwin v. Franks, 120 U. S. 678 [dissenting opinion]; Logan v. United 
States, iL U. S. 263; Wong Wing v. United States, 163 U. S. 228; Plersy v. Ferguson, 163 
U. S. 537; Robertson v. Baldwin, 165 U. S. 275; United States v. Wong Kim Ark, 169 
U S. 649;'Maxwell v. Dow, 176 U. S. 581; Downes v. Bidwell, 182 U. S. 244; Patterson v. 
Bark Eudora, 190 U. S. 169; The Chickasaw' Freedmen, 193 U. S. 115; Kepner v. United 
States 195 U. S. 100; Clyatt v. United States, 197 U. S. 207; Hodges v. United States, 203 
U. S. 1; Franklin v. South Carolina, 218 U. S. 161; Bailey v. Alabama, 211 U. S. 452; 
Bailey v. Alabama, 219 U. S. 219. 

Section 2. Congress shall have power to enforce this article by appropriate 
legislation. 



34 


Art.XIV, § 1. CONSTITUTION OF THE UNITED STATES. 


ARTICLE XIV. 

Section 1 . ^ All persons born or naturalized in the United States, and sub¬ 
ject to the jurisdiction thereof, are citizens of the United States and of the 
State V. herein they reside. No State shall ^ make or enforce any law which shall 
abridge the privileges or immunities of citizens of the United States; nor shall 
any State ^ deprive any person of life, liberty, or property, without due process 
of law; nor ^ deny to any person within its jurisdiction the equal protection of 
the laws. 

This section does not render invalid the statute which creates the state liability 
board of awards and confers powers thereon (G. C. § 1465-37, et seq., 102 v. 525): State, 
ex rel., v. Creamer, 85 O. S. 349. 

A construction of G. C. § 1409, which would make it prohibit the sale or having in 
possession for sale plumage of the white heron would render the statute unconstitutional 
in that it would be in violation of the fourteenth amendment of the federal constitution: 
Solomon v. State, 11 O. N. P. (N.S.) 525. 

The act of May 31, 1911, relating to preservation of the health of females employed 
in manufacturing, mechanical, mercantile and other establishments, is not in dero'gation oi 
the constitutional right of freedom of contract, nor is the classification arbitrary or the 
exemption unreasonable which is therein established, but the act is justified on the ground 
of public health, morals and the general welfare, and is valid and enforceable: Elx parte 
Hawley, 12 O. N. P. (N.S.) 1 [affirmed without opinion. Ex parte Hawley, 85 O. S. 494]. 

Snell V. Street Railway Co., 16 O. C. C. 633, 9 O. C. D. 264 [reversed, Snell v. Ry., 60 
O. S. 256]; Bauer v. Casey, 6 O. C. C. (N.S.) 69, 16 O. C. D. 598; In re Application of 
Bachtel, 11 O. C. C. (N.S.) 537, 21 O. C. D. 159; State v. Kuhn, 8 O. N. P. 197, 11 O. D. (N.P.) 
321; Maltby v. Railway Co., 13 O. D. (N.P.) 280; McKisson v. Wright, 15 O. D. (N.P.) 105. 

For discussion of legislation concerning civil rights see: Hornbuckle v. Toombs, 85 

U. S. (18 Wall.) 648; Strauder v. West Virginia, 100 U. S. (10 Otto) 303; Ex parte Virginia, 
100 U. S. (10 Otto) 339; Neal v. Delaware, 103 U, S. (13 Otto) 370; United States v. Harris, 
106 U. S. (16 Otto) 629. 

1 CITIZENS OF UNITED STATES. Slaughter House Cases, 83 U. S. (16 Wall.) 36; 

United States v. Reese, 92 U. S. (2 Otto) 214; Robertson v. Cease, 97 U. S. (7 Otto) 646; 
Railroad Co. v. Koontz, 104 U. S. (14 Otto) 5; Elk v. Wilkins, 112 U. S. 94; Baldwin v. 
Franks, 120 U. S. 678; Wisconsin v. Insurance Co., 127 U. S. 265; Anderson v. Watt, 138 U. S. 
694; Boyd v. Thayer, 143 U. S. 135; Shaw v. Mining Co., 145 U. S. 444; Fong Yue Ting, v. 
United States, 149 U. S. 698; Hooper v. California, 155 U. S. 648; United States v. Wong Kim 
Ark, 169 U. S. 649; Blake v. McClung 172 U. S. 239; Insurance Co. v. Daggs, 172 U. S 557; 
Downes v. Bidwell, 182 U. S. 244; Giles v. Teasley, 193 U. S. 146; Pope v. Williams, 193 U. S. 
621; Printing Co. v. Edwards, 194 U. S. 377; Erie Ry. v. Kane, 15 O. F, D. 614, 83 C. C. a! 
664, 155 P’ed. 118; circuit decision, contra: see Kane v. Railway, 14 O. F. D. 213, which was 
reversed, Kane v. Railway, 14 O. F’. D. 452; State v. McCann, 21 O. S. 198; Bergman v Cleve¬ 
land, 39 O. S. 651; State v. Board of Education, 76 O. S. 297; New York Insurance Co v 
Block, 12 O. C. C. 224, 6 O. C. D. 166. - ' ' 

2 PRIVILEGES AND IMMUNITIES. Slaughter House Cases, 83 U. S. (16 Wall.) 36* 

Bradwell v. State, 83 U. S. (16 Wall) 130; Bartemeyer v. Iowa, 85 U. S (18 Wall 1 

129; Minor v. Happersett, 88 U. S. (21 Wall.) 162; Hall v. De Cuir, 95 U S (5 Otto) 

485; Davidson v. New Orleans, 96 U. S. (6 Otto) 97; Virginia v. Rives 100 U S 

(10 Otto) 313; Vance v. Vance, 108 U. S. 514; Civil Rights Cases, 109 U. S. 3- United 
States V. Gale, 109 U. S. 65; Butcher’s Co. v. Crescent City Co., Ill U. S 746-’Presser 

V. Illinois, 116 U. S. 252; Fire Association v. New York, 119 U. S. 110; Baldwin v 

Franks, 120 U. S. 678; Kidd v. Pearson, 128 U. S. 1; Beatty v, Benton, 135 U s' 
244; liOisy v. Hardin, 135 U. S. 100; In re Kemmler, 136 U. S. 436; Caldwell v Texas 
137 U. S. 692; In re \Vood, 140 U. S. 278; Boyd v. Thayer, 143 U. S. 135; O’Neil’ 
V. Vermont, 144 U. S. 323; Brown v. Massachusetts, 144 U. S. 573; Hallinger v. Davis, 
146 U. S. 314; Giozza v. Tiernan, 148 U. S. 657; Doeber v. Schroeder, 149 U. S. 580; Duncan 
V. Missouri, 152 U. S. 377; Miller v. Texas, 153 U. S. 535; In re Lockwood, 154 U. S. 116; 
Gray v. Connecticut, 159 U. S. 74; Moore v. Missouri, 159 U. S. 673; Gibson v. Mississippi’, 
162 U. S. 565; Dibble v. Land Co., 163 U. S. 63; Murray v. Louisiana, 163 U. S. 101; Plessy 
V. Ferguson, 163 U. S. 537; Stave Co. v. County, 166 U. S. 648; Holden v. Hardy, 169 

U. S. 366; Williams v. Mississippi, 170 U. S. 213; Railway Co. v. Texas, 170 U. S. 226; 

Blake* V. McClung, 172 U. S. 239; Chemical Co. v. Mines Co., 172 U. S. 465; Insurance Co! 

v. Daggs, 172 U. S. 557; Markuson v. Boucher, 175 U. S. 184; Cumming v. Board, 175 

U. S. 528; Maxwell v. Dow, 176 U. S. 581; Oil Co. v. Texas, 177 U. S. 28; Sully v. Bank, 
178 U. S. 289; Williams v. Fears, 179 U. S. 270; Railway Co. v. Kentucky, 179 U. S. 388; 
Mallett V. North Carolina, 181 U. S. 589; Arkansas v. Coal Co., 183 U. S. 185; Railway Co! 

V. Purdy, 185 U. S. 148; Swafford v. Templeton, 185 U. S. 487; Home v. New York, 187 
U. S. 155; Chadwick v. Kelley, 187 U. S. 540; Manley v. Park, 187 U. S. 547; Power Co. v. 
Railway Co., 187 U. S. 569; Giles v. Harris, 189 U. S. 475; Railway Co. v. Flannigan, 192 
U. S. 29; Adams v. New York, 192 U. S. 585; Rippey v. Texas, 193 U. S. 504; Cox v. Texas 
202 U. S. 446; Hodges v. United States, 203 U. S. 1; Martin v. Railway Co., 203 U. S. 284* 
Board v. Illinois, 203 U. S. 553; Ballard v. Hunter, 204 U. S. 241; Bacon v. Walker, 204 

U. S. 311; Kessler v. Treat, 205 U. S. 33; Mining Co. v. Fulton, 205 U. S. 60; Patterson 

V. Colorado, 205 U. S. 454; Twining v. New .lersey, 211 U. S. 78; France v. State, 57 

O. S. 1; Humphreys v. State, 70 O. S. 67; The State, ex rel. Webber, v, Felton, et'al. 

77 O. S. 554; Hammond v. The State of Ohio, 78 O. S. 15; Rhoades v. City of Toledo’ 
6 O. C. C. (N.S.) 9, 3 O. C. D. 325 [affirmed, 51 O. S. 562]; Freeman v. Hunter, 7 O. C. c’ 
117, 3 O. C. D. 689 [affirmed, no report, 51 O. S. 574]; Schmeltz v. The State of Ohio 
8 O. C. C. 82, 4 O. C. D. 287; City of Cincinnati v. Steinkamp, 9 O. C. C. 178, 6 O. C. D. 85 

[affirmed, 54 O. S. 284, 43 N. E. Rep. 490]; Gage v. The State, 1 O. C. C. (N.S.) 221, 14 



35 


CONSTITUTION OF THE UNITED STATES. Art.XIV, § 1. 


O. C. D. 724 [reversed, State v. Ga^e, 72 O. S. 210, 73 N. E. Rep. 10781: Hughes v. State, 
9 O. C. C. (N.S.) 369, 19 O. C. D. 237; Wickham v. Coyner, 12 O. C. C. (N.S.) 433; State of 
Ohio V. Ottman, 4 O. N. P. 195, 6 O. D. (N.P.) 265; State v. Norton, 5 O. N. P. 183, 7 O. D. 
(N.P.) 354; Columbus v. Jeffrey, 2 O. N. P. (N.S.) 85, 14 O. D. (N.P.) 609; State v. Gilfillan, 
3 O. N P. (N.S.) 153, 15 O. D. (N.P.) 756; Fields v. State, 4 O. N. P. (N.S.) 401, 17 O. D. 
(N.P.) 16. 

® DUE PROCESS OF L.AW. A. General Principles. Bartemeyer v. Iowa, 85 U. S. 
(18 Wall.) 129; Walker v. Sauvinet, 92 U. S. (2 Otto) 90; United States v. Cruikshank, 
92 U. S. (2 Otto) 542; Munn v. Illinois. 94 U. S. (4 Otto) 113; McMillen v. Anderson, 
95 U. S. (5 Otto) 37; Pennoyer v. Neff, 95 U. S. (5 Otto) 714; Davidson v. New 
Orleans, 96 U. S. (6 Otto) 97; Virginia v. Rives, 100 U. S. (10 Otto) 313; Kelly v. 
Pittsburgh, 104 U. S. (14 Otto) 78; Gross v. Mortgage Co.. 108 U. S. 477; Civil 
Rights Cases, 109 U. S. 3; Louisiana v. Mayor, 109 U. S. 285; Hurtado v. California, 110 

U. S. 516; Hagar v. District, 111 U. S. 701; Union Co. v. City Co., Ill U. S. 746; Wurts v. 
Hoagland, 114 U. S. 606; Kentucky Railroad Tax Cases, 115 U. S. 321; Railway v. Humes, 
115 U. S. 512; Presser v. Illinois, 116 U. S. 252; Tick Wo v. Hopkins, 118 U, S. 356; Ker 

V. Illinois, 119 U. S. 436; Spies v. Illinois, 123 U. S. 131; Mugler v. Kansas, 123 U. S. 623; 
In re Sawyer, 124 U. S. 200; Spencer v. Merchant, 125 U. S. 345; Railway v. Mackey, 127 

U. S. 205; Railway v. Herrick, 127 U. S. 210; Powell v. Pennsylvania, 127 U. S. 678; Mahon 

V. Justice, 127 U. S. 700; Kidd v. Pearson, 128 U. S. 1; Railway v. Alabama, 128 U. S. 96; 
Walston V. Nevin, 128 U. S. 578; Railway v. Beckwith, 129 U. S. 26; Dent v. West Virginia, 
129 U. S. 114; Freeland v. Williams, 131 U. S. 405; Palmer v. McMahon, 133 U. S. 660; 
Eilenbecker v. County, 134 U. S. 31; Railroad v. Pennsylvania, 134 U. S. 232; Railway 
V. Minnesota, 134 U. S. 467; Leisy v. Hardin, 135 U. S. 100; Beatty v. Benton, 135 U. S. 
244; In re Kemmler, 136 U. S. 436; In re Converse, 137 U. S. 624; Caldwell v. Texas, 137 

U. S. 692; Kauffman v. Wootters. 138 U. S. 285; Uudeling v. Chaffe, 143 U. S. 301; Fielden 
v. Illinois, 143 U. S. 452; Budd v. New York, 143 U. S. 517; New York, ex rel., v. Squire, 
145 U. S. 175; Brown v. Smart, 145 U. S. 454; Morley v. Railway, 146 U. S. 162; Railway 

V. Denton, 146 U. S. 202; Hallinger v. Davis, 146 U. S. 314; Yesler v. Commissioners, 146 

U. S. 646; Giozza v. Tiernan, 148 U. S. 657; In re Frederich, 149 U. S. 70; Railway v. 
I’inkney, 149 U. S. 194; Loeber v. Schroeder, 149 U. S. 580; Fong’ Yue Ting v. United 

States, 149 U. S. 698; Powell v. County, 150 U. S. 433; Railway v. Bristol, 151 U. S. 556; 

IMontana Co. v. Mining Co., 152 U. S. 160; Snell v. Chicago, 152 U. S. 191; Duncan v. 

Missouri, 152 U. S. 377; Marchant v. Railroad, 153 U. S. 380; Brass v. Stoeser, 153 U. S. 

391; Scott V. McNeal, 154 U. S. 34; Railway v. Gill, 156 U. S. 649; Bergemann v. Backer, 
157 U. S. 655; Gray v. Connecticut, 159 U. S. 74; Land Co. v. Minnesota, 159 U. S. 526; 
Moore v. Missouri, 159 U. S. 673; Kohl v. Lehlback, 160 U. S. 293; Railway v. Iowa, 160 
LJ. S. 389; Eldridge v. Trezevant, 160 U. S. 452; Lowe v. Kansas, 163 U. S. 81; Talton 
v. Mayes, 163 U. S. 376; Plessy v. Ferguson, 163 U. S. 537; Irrigation District v. Bradley, 
164 U. S. 112; Railway v. Nebraska, 164 U. S. 403; Railway v. Chicago, 164 U. S. 454; 

Turnpike Co. v. Sandford, 164 U. S. 578; Railway v. Mathews, 165 U. S. 1; Allgeyer v. 

Iiouisiana, 165 U. S. 578; Railroad v. New York, 165 U. S. 628; Railway v. Chicago, 166 
U. S. 226; In re Eckart, 166 U. S. 481; Stave Co. v. Butler County, 166 U. S. 648; Supply 
Co. V. Brooklyn, 166 U. S. 685; Sentell v. Railway, 166 U. S. 698; Davis v. Massachusetts, 

167 U. S. 43; Bank v. Pennsylvania, 167 U. S. 461; Miller v. Railway, 168 U. S. 131; 

Hodgson V. Vermont, 168 U. S. 262; Nobles v. Georgia, 168 U. S. 398; Castillo v. McConnico, 

168 U. S. 674; Holden v. Hardy, 169 U. S. 366; Savings Society v. Multnomah County, 169 
U. S. 421; Smyth v. Ames, 169 U. S. 466; Backus v. Depot Co., 169 U. S. 557; Wilson v. 
North Carolina, 169 U. S. 586; King v. Mullins, 171 U. S. 404; Blake v. McClung, 172 

U, S. 239; Norwood v. Baker, 172 U. S. 269; Railway v. New Whatcom, 172 U. S. 314; 
Clark V. Kansas City, 172 U. S. 334; Insurance Co. v. Daggs, 172 U. S. 557; Insurance Co. 

V. Spratley, 172 U. S. 602; McQuade v. Trenton, 172 U. S. 636; Wilson v. Eureka City, 173 
U. S. 32; Trust Co. v. Campbell, 173 U. S. 84; Dewey v. Des Moines, 173 U. S. 193; Railway 
v. Paul, 173 U. S. 404; Paper Co. v. Watson, 173 U. S. 443; Bridge Co. v. Henderson City, 
173 U. S. 592; Railway v. Smith, 173 U. S. 684; Brown v. New Jersey, 175 U, S. 172; 
Markuson v. Boucher, 175 U. S. 184; King v. Cross, 175 U. S. 396; Abbott v. Bank, 175 

U. S. 409; Cumming v. Board, 175 U. S. 528; Bolin v. Nebraska, 176 U. S. 83; Roller v. 

Holly, 176 U. S. 398; Maxwell v. Dow, 176 U. S. 581; Oil Co. v. Texas, 177 U. S. 28; Gundling 

V. Chicago, 177 U. S. 183; Oil Co. v. Indiana, 177 U. S. 190; Railway v. Schmidt, 177 U. S. 
230; Timber Co. v. Comptroller, 177 U. S. 318; Railway v. Gardner, 177 U. S. 332; Osborne 
V. San Diego Co., 178 U. S. 22; Sully v. Bank, 178 U. S. 289; Wheeler v. Railway, 178 

• U. S. 321; Taylor v. Beckham, 178 U. S. 548; Chapin v. Fye, 179 U. S. 127; Railway v. 
Kentucky, 179 U. S. 388; Davis v. Burke, 179 U. S. 399; Tyler v. Judges, 179 U. S. 405; 
Lampasas v. Bell, 180' U. S. 276; Cargill Co. v. Minnesota, 180 U. S. 452; Lombard v. 
Commissioners, 181 U. S. 33; French v. Paving Co., 181 U. S. 324; Wight v. Davidson, 
181 U. S. 371; Tonawanda v. Lyon, 181 U. S. 389; Webster v. Fargo, 181 U. S. 394; Shumate 
V. Heman, 181 U. S. 402; Mallett v. North Carolina, 181 U. S. 589; Carson v. Sewerage 
Comm., 182 U. S. 398; Simon v. Craft, 182 U. S. 427; Storti v. Massachusetts, 183 U, S. 138; 
Greene v. Henkel, 183 U. S. 249; Orr v, Gilman, 183 U. S. 278; McChord v. Railway Co., 
183 U. S. 483; Railway Co. v. Kentucky, 183 U. S. 503; Minder v. Georgia, 183 U. S. 559; 
Railway Co. v. Zernecke, 183 U. S. 582; King- v. Portland City, 184 U. S. 61; Voigt v. 
Detroit, 184 U. S. 115; Goodrich v. Detroit, 184 U. S. 432; Connolly v. Sewer Pipe Co., 184 
U. S. 540; Coal Co. v. Illinois, 185 U. S. 203; Waterworks Co. v. Louisiana, 185 U. S. 336; 
Compagnie Francaise v. Bd. of Health, 186 U. S. 380; Turpin v. Lemon, 187 U. S. 51; 

Dreyer v. Illinois, 187 U. S. 71; School v. McAnnulty, 187 U. S. 94; Layton v. Missouri, 187 

U. S. 356; Manley v. Park, 187- U. S. 547; Williams v. Parker, 188 U. S. 491; Sawyer v. 
Piper, 189 U. S. 154; Glidden v. Harrington, 189 U. S. 255; Water Co. v. Knoxville, 189 
U. S. 434; Ross v. Aguine, 191 U. S. 60; Joplin v. Light Co., 191 U. S. 150; Missouri v. 



36 


Art.XIV, § 1. COx\STlTUTION OF THE UNITED STATES. 


Dockery, 191 U. S. 165; Water Co. v. Defiance, 191 U. S. 184; Atkin v. Kansas, 191 U. S. 

207; Hibben v. Smith, 191 U. S. 310; Spreckel’s Sugar Refining Co. v. McClain, 192 

U. S. 397; Railway Co. v. Osborn, 193 U. S. 17; Railway v. Soell, 193 U. S. 30; Railway 
Co. V. Minnesota, 193 U. S. 53; Leigh v. Green, 193 U. S. 79; Northern Securities Co. v. 
United States, 193 U. S. 197; Barney v. New York City, 193 U. S. 430; Mining Co. v. Walsh, 
193 U. S. 460; Water Co. v. Newburyport, 193 U. S. 561; Railway Co. v. Carson, 194 

U. S. 136; West v. Louisiana, 194 U. S. 258; Fisher v. St. Louis, 194 U. S. 361; Cleveland 

V. Railway Co., 194 U. S. 517; Shepard v. Barron, 194 U. S. 553; Chandler v. Dix, 194 

U. S. 590; Field v., Asphalt Co., 194 U. S. 618; McCray v. United States, 195 U. S. 27; 

Dobbins v. Los Angeles, 195 U. S. 223; Fayerweather v. Ritch, 195 U. S. 276; Olsen v. 
Smith, 195 U. S. 332; Seattle v. Kelleher, 195 U. S. 351; Water Works Co. v. Helena, 195 

U. S. 383; Harding v. Illinois, 196 U. S. 78; Traction Co. v. Mining Co., 196 U. S. 239; 
Hodge V. Muscatine County, 196 U. S. 276; Corry v. Baltimore, 196 U. S. 466; Insurance 
Co. V. Bowland, 196 U. S. 611; Jacobson v. Massachusetts, 197 U. S. 11; Oil Co. v. Texas, 
197 U. S. 115; Light Co. v. Commission, 197 U. S. 453; Iron Co. v. Iron Co., 197 U. S. 463; 
United States v. Ju Toy, 198 U. S. 253; Mining Co. v. Hanley, 198 U. S. 292; Railway 

V. Pennsylvania, 198 U. S. 341; Cunnius v. School District, 198 U. S. 458; Railway v. 

New York, 199 U. S. 1; Farrell v. O’Brien, 199 U. S. 89; Oil Co. v. Arnaudet, 199 U. S. 

182; Transit Co. v. Kentucky, 199 U. S. 194; Marvin v. Trout, 199 U. S. 212; Michigan 
ex rel., v. Lowrey, 199 U. S. 233; French v. Taylor, 199 U. S. 274; Reduction Co. v. Sanitary 
Works, 199 U. S. 306; Gardner v. Michigan, 199 U. S. 325; Jack v. Kansas, 199 U. S. 372; 
Carroll v. Insurance Co., 199 U. S. 401; Rogers v. Peck, 199 U. S. 425; Manigault v. 
Springs, 199 U. S. 473; Riggins v. United States, 199 U. S. 547; Waterworks Co. v. 
Owensboro, 200 U.* S. 38; Mead v. Portland. 200 U. S. 148; Howard v. Kentucky, 200 

U. S. 164; Railway Co. v. Commissioners, 200 U. S. 561; Kentucky v. Powers, 201 U. S. 1; 
Felts V. IVIurphy, 201 U. S. 123; Otis Co. v. Ludlow Co., 201 U. S. 140; Railroad Co. v. 
Powers, 201 U. S. 245; Soper v. Lawrence, 201 U. S. 359; Railroad v. Chicago, 201 U. S. 
506; Haddock v. Haddock, 201 U. S. 562; St. John v. New York, 201 U. S. 633; Rawlins 

V. Georgia, 201 U. S. 638; Hulbert v. Chicago, 202 U. S. 275; Devine v. Los Angeles, 202 

U. S. 313; Railroad v. Miller, 202 U. S. 584; Hodges v. United States, 203 U. S. 1; National 

C!ouncil V. State Council, 203 U. S. 151; Petroleum Co. v. West Virginia, 203 U. S. 183; 

Insurance Co. v. Riggs, 203 U. S. 243; Railroad Co. v. Florida, ex rel., 203 U. S. 256; 

Railway Co. v. Florida, 203 U. S. 261; Martin v. Railway Co., 203 U. S. 284; Trust Co. v. 
I.exington, 203 U. S. 323; Offield v. Railway Co., 203 U. S. 372; Railway Co. v. New 
Haven, 203 U. S. 379; Gatewood v. North Carolina, 203 U. S. 531; Cahen v. Brewster, 203 
U. S. 543; Life Ass’n v. McDonough, 204 U. S. 8; Hatch v. Reardon, 204 U. S. 152; Ballard 
v. Hunter, 204 U. S. 241; Bacon v. Walker, 204 U. S. 311; Bown v. Walling, 204 U. S. 320; 
Turf Ass’n v. Greenberg, 204 U. S. 359; Serra v. Mortlga, 204 U. S. 470; Railway Co. v. 
Babcock, 204 U. S. 585; Coffey v. Harlan County, 204 U. S. 659; Kessler v. Treat, 205 

U. S. 33; Mining Co. v. Fulton, 205 U. S. 60; Wetmore v. Karrick, 205 U. S. 141; Tracy 

V. Ginzberg, 205 U. S. 170; Urquhart v. Brown, 205 U. S. 179; Life Ins. Co. v. New Orleans, 

205 U. S. 395; Chanler v. Kelsey, 205. U. S. 466; Railroad Co. v. Commission, 206 U. S. 1; 
Buck V. Beach, 206 U. S. 392; Drey v. Converse, 206 U. S. 516; Sauer v. N^w York City, 

206 U. S. 536; Raymond v. Traction Co., 207 U. S. 20; Lee v. New Jersey, 207 U. S. 67; 
Railway v. Massachusetts, 207 U. S. 79; Railway v. Wright, 207 U. S. 127; Heath v. Worst, 

207 U. S. 338; Consolidated Rendering Co. v. Vermont, 207 U. S. 541; Cosmopolitan Club 
V. Virginia, 208 U. S. 378; Muller v. Oregon, 208 U. S. 412; Ughbanks v. Armstrong, 208 

U. S. 481; Gesellschaft v. Umbreit, 208 U. S. 570; Railway v. Duluth, 208 U. S. 583; 
Hairston v. Railway, 208 U. S. 598; Ex parte Young, 209 U. S. 123; Thompson v. Kentucky, 
209 U. S. 340; Water Co. v. McCarter, 209 U. S. 349; Railway v. Jersey City, 209 U. S. 
473; Longyear v. Toolan, 209 U. S. 414; Railway v. Porter, 210 U. S. 177; Jockey Club 

V. Missouri, 210 U. S. 324; Londoner v. Denver, 210 U. S. 373; Silz v. Hesterberg, 211 

U. S. 31; Twining v. New Jersey, 211 U. S. 78; Prentis v. Railway, 211 U. S. 210; Telephone 
Co. V. Los Angeles, 211 U. S. 265; Cold Storage Co. v. Chicago, 211 U. S. 306; Bailey 

V. Alabama, 211 U. S. 452; Paddell v. New York, 211 U. S. 446; Beers v. Glynn, 211 U. S. 
477; Lemieux v. Young, 211 U. S. 489; Rusch v. Land and Mining Co., 211 TJ. S. 526; 
McLean v. Arkansas, 211 U. S. 539; Knoxville v. Water Co., 212 U. S. 1; Moyer v. Peabody. 

212 U. S. 78; Oil Co. v. Texas, 212 U. S. 86, 212 U. S. 112; Railway v. Stockyards Co., 212 

U. S. 132; Land Co. v. Yordy, 212 U. S. 152; Packing Co. v. Arkansas, 212 U. S. 322; 
Bonner v. Gorman, 213 U. S. 86; Keerl v. Montana, 213 U. S. 135; Murray v. Distilling 
Co., 213 U. S. 151; District of Columbia v. Brooke, 214 U. S. 138; Selliger v. Kentucky, 

213 U. S. 200; Goodrich v. Ferris, 214 U. S. 71; Welch v. Swasey, 214 U. S. 91; Des Moines 

V. City Railway Co., 214 U. S. 179; Railway v. Minneapolis, 214 U. S. 497; Road Co. v. 

Hines, 215 U. S. 336; Telegraph Co. v. Kansas, ex rel., 216 U. S. 1; Pullman Co. v. Kansas, 
ex rel., 216 U. S. 56; King v. West Virginia, 216 U. S. 92; Railway v. Kansas, ex rel., 216 

U. S. 262; Distilling Co. v. Baltimore, 216 U. S. 285; Hill Cemetery v. San Francisco, 216 

U. S. 358; Orleans Parish v. Insurance Co., 216 U. S. 517; Withnell v. Construction Co., 

216 U. S. 603; Williams v. Arkansas, 217 U. S. 79; Oil Co. v. Texas, 217 U. S. 114; Chamber 
of Commerce v. Boston, 217 U. S. 189; Railway v. Nebraska, 217 U. S. 196; Lumber Co. 

v. Mississippi, 217 U S. 433; Bank v. Kentucky, 217 U. S. 443; Kidd, PJater Co. v. Grocer 

Co., 217 U. S. 461; Rhodus v. Manning, 217 U. S. 597; Shevlin Co. v. Minnesota, 218 U. S. 
57; Franklin v. South Carolina, 218 U. S. 161; Watson v. Maryland, 218 U. S. 173; Wing 

V. United States, 218 U. S. 272; Railway v. Connersville, 218 U. S. 336; Mofifitt v. Kelly, 
218 U. S. 400; Telegraph Co. v. Milling Co., 218 U. S. 406; Railway v. Kentucky, 218 
U. S. 551; Mobile R. R. v. Turnipseed, 219 U. S. 35; Sperry & Hutchinson Co. v. 
Rhodes, 220 U. S. 502; Flint v. Stone, Tracy Co., 220 U. S. 107; Lindsley v. Natural 
Carbonio Gas Co., 220 U. S. 61; Appleby v. Buffalo, 221'U. S. 524 [affirming 189 N. Y. 
1631; Chicago, Burlington and Quincy R. R. v. Chicago, 166 U. S. 226; Scott v. Toledo, 
36 Fed. 385, 6 O. F. D. 192; Bank v. Shields, 59 Fed. 952, 8 O. F. D. Ill; Myers v. Shields. 



37 


CONSTITUTION OF THE UNITED STATES. Art.XIV, § 1. 


61 Fed. 713, 8 O. F. D. 239, 31 Bull. 336; Shaver v. The Pennsylvania Company, 71 Fed. 
931, 9 O. F. D. 221; Baker v. The Village of Norwood, 74 Fed. 997, 9 O. F. D. 285; Aultman 
<S". Taylor v. Brumfield, 102 Fed. 7, 10 O. F. D. 227; Adams Express Co. v. Ohio State 
Auditor, 165 U. S. 194, 10 O. F. D. 655; Arbuckle v. Blackburn, 113 Fed. 616, 13 O. F. D. 44, 
51 C. C. A. 122; Dairy Co. v. Ohio, 183 U. S. 238, 14 O. F. D. 12; Scottish Union v. Bowland, 
196 U. S. 611, 14 O. F. D. 543; Anderson v. Messenger, 158 Fed. 250, 16 O. F. D. 134, 85 
C. C. A. 468; Caldwell v. Village of Carthage, 49 O. S. 334; City of Cincinnati v. Steinkamp, 
'trustee, 54 O. S. 284; Kingsborough v. Tousley, 56 O. S. 450; Schroder v. Overman, 
61 O. S. 1; Commissioners of Champaign Co. v. Church, 62 O. S. 318; State v. French, 71 
O. S. 186; Phillips v. The State of Ohio, 77 O. S. 214; State, ex rel., v. Creamer, 85 
O. S. 349; Board of Health v. Greenville, 86 O. S. 1; In the Matter of the Application 
of Wm. J. George, 5 O. C. C. 207, 3 O. C. D. 104; Beamer v. State, 21 O. C. C. 440, 12 
O. C. D. 4; Turnpike Co. v. Waechter, 2 O. C. C. (N.S.) 21, 15 O. C. D. 605; Burke v. Village 
of Wapakoneta, 4 O. C. C. (N.S.) 482; Froelich v. Railway Co., 5 O. C. C. (N.S.) 6, 14 
O C. D. 359; State, ex rel., v. County Commissioners, 7 O. C. C. (N.S.) 469, 18 O. C. D. 

212; Hughes v. Ohio, 9 O. C. C. (N.S.) 369, 19 O. C. D. 237; Markley v. State of Ohio, 12 

O. C. C. (N.S.) 81, 21 O. C. D. 225; Haas v. Remick, 13 O. C. C. (N.S.) 1, 21 O. C. D. 591; 
Thale v. Cincinnati, 1 O. N. P. 427,. 3 O. D. (N.P.) 131; State v. Allen, 3 O. N. P. 201, 
6 O. D. (N.P.) 43; Emery v. City of Cincinnati, 4 O. N. P. 220, 6 O. D. (N.P.) 411; State 
V. Norton, 5 O. N. P. 183, 7 O. D. (N.P.) 354; State of Ohio v. Gardner, 7 O. N. P. 61, 
5 O. N. P. 46; State of Ohio v. Bateman, 7 O. N. P. 487, 10 O. D. (N.P.) 68; Foundry Co. 
V. Cincinnati, 8 O. N. P. 167, 11 O. D. (N.P.) 413; Cleveland v. Bryan, 11 O. D. (N.P.) 473; 
Wright & Taylor v. Crawford, 13 O. D. (N.P.) 607; In the Matter of Clayton, 13 O. D. 
(N.P.) 546; Johnson Coal Mining Co. v. Hocking Valley Ry. Co.. 1 O. N. P. (N.S.) 385, 14 
O. D. (N.P.) 209; Kaiser v. Walsh, 4 O. N. P. (N.S.) 507, 17 O. D. tHP.) 324; State v. 

Bridge Co., 6 O. N. P. (N.S.) 55, 18 O. D. (N.P.) 273; State v. Rodefer, 5 O. N. P. (N.S.) 337, 

18 O. D. (N.P.) 76; Kealey v. Faulkner, 7 O. N. P. (N.S.) 49, 18 O. D. (N.P.) 498; Akron 

Board of Educat. v. Sawyer, 7 O. N. P. (N.S.) 401. 19 O. D. (N.P.) 1; Cit’z. Bank v. 

Union Life Ins. Co., 19 O. D. (N.P.) 507: Smith Agric. Chemical Co. v. Calvert, et al., 

19 O., D. (N.P.) 571; State v. Coats, 10 O. N. P. (N.S.) 349, 20 O. D. (N.P.) 561; In re 

F. M. Davis & Co., 1 O. L. R. 193. 

For general references to this amendment see: 

n. Freedom of Contraet. Hooper v. California, 155 U. S. 648; Allgeyer v. Louisiana, 
165 U. S. 578; Holden v. Hardy. 169 U. S. 366; United States v. Traffic Association, 171 U. S. 
505; Insurance Co. v. Cravens, 178 U. S. 389; Railroad Co. v. Jacobson, 179 U. S. 287; Cargill 
V. Minnesota, 180 U. S. 452; Iron Co. v. Barton, 183 U. S. 23; Nutting v. Massachusetts, 183 

U. S. 553; Booth v. Illinois, 184 U. S. 425; Glue Co. v. Glue Co., 187 U. S. 611; Atkin v. 
Kansas, 191 U. S. 207; Railroad Co. v. New York, 193 U. S. 416; Railway Co. v. Los Angeles, 
194 U. S. 112; Aikens v. Wisconsin, 195 U. S. 194; Smiley v. Kansas, 196 U. S. 447; Jacobson 

V. Massachusetts, 197 U. S. 11; Caro v. Davidson, 197 U. S. 197; Clyatt v. United States, 197 

U. S. 207; In re Heff, 197 U. S. 488; Muhlke.r v. Railroad Co., 197 U. S. 544; Lochner v. 
New York. 198 U. S. 45; Water Works Co. v. Tampa, 199 U. S. 241; Carroll v. Insurance 
Co., 199 U. S. 401; Hodges v. United States, 203 U. S. 1; State, ex rel., v. Creamer, 85 
O. S. 349; Robbins v. Hennessy, 86 O. S. 181. 

* EftUAL. PROTECTION. Slaughter House Cases. 83 U. S. (16 Wall.) 36; United States 

V. Reese, 92 U. S. (2 Otto) 214 [dissenting opinion!; Munn v. Illinois, 94 U. S. (4 Otto) 113; 
Missouri v. Lewis, 101 U. S. (11 Otto) 22; Pace v. Alabama, 106 U. S. (16 Otto) 583; Bush v. 
Kentucky, 107 U. S. (17 Otto) 110; Civil Rights Cases, 109 U. S. 3; Butcher’s Union Co. v. 
Crescent Co., Ill U. S. 746; Barbier v. Connolly, 113 U. S. 27; Wurts v. Hoagland, 114 U. S. 
606; Kentucky Railroad Tax Cases, 115 U. S. 321; Railway Co. v. Humes, 115 U. S. 512; 
Yick Wo V. Hopkins, 118 U. S. 356; Fire Associatioh v. New York, 119 U. S. 110; Mugler 
V. Kansas, 123 U. S. 623; Bank v. Boston, 125 U. S. 60; Mining Co. v. Pennsylvania, 125 

U. S. 181; California v. Railroad Co., 127 U. S. 1; Railway Co. v. Mackey, 127 U. S. 205; 

Railway Company v. Herrick, 127 U. S. 210; Powell v. Pennsylvania, 127 U. S. 678; 
Walston V. Nevin, 128 U. S. 578; RaJlway Co. v. Beckwith, 129 U. S. 26; Eilenbecker v. 

I’lymouth Co., 134 U. S. 31; Railroad Co. v. Pennsylvania, 134 U. S. 232; Insurance Co. 

V. New York, 134 U. S. 594; Beatty v. Benton, 135 U. S. 244; Leisy v. Hardin, 135 U. S. 
100; Railroad Co. v. Pennsylvania, 136 U. S. 114; Caldwell v. Texas, 137 U. S. 692; In re 
Wood, 140 U. S. 278; Express Co. v. Seibert, 142 U. S. 339; Fielden v. Illinois, 143 U. S. 
452; Budd v. New York, 143 U. S. 517; Logan v. P^nited States, 144 U. S. 263; Yesler 
V. Commissioners, 146 U. S. 646; Giozza v. Tiernan, 148 U. S. 657; Railway Co. v. Wright, 
151 U. S. 470; Railroad Co. v. Bristol, 151 U. S. 556; Duncan v. Missouri, 152 U. S. 377; 
Marchant v. Pennsylvania Railroad, 153 U. S. 380; Brass v. North Dakota, ex rel., 153 

U. S. 391; Bergemann v. Backer, 157 U. S. 655; Moore v. Missouri, 159 U. S. 673; Kohl 

V. Lehlback, 160 U. S. 293; Eldridge v. Trezevant, 160 U. S. 452; Gibson v. Mississippi, 162 

U. S. 565; Lowe v. Kansas, 163 U. S. 81; Murray v. Louisiana, 163 U. S. 101; Plessy v. 
Ferguson, 163 U. S. 537; Irrigation District v. Bradley, 164 U. S. 112; Turnpike Road 
Co. V. Sandfor-d, 164 U. S. 578; Railway Co. v. Mathews, 165 U. S. 1; Railway Co. v. Ellis, 
105 U. S. 150; Railroad Co. v. New York, 165 U. S. 628; Railroad Co. v. Chicago, 166 

U. S. 226; Bank v. Chehalis County, 166 U. S. 440; Railroad Co. v. Louisville, 166 U. S. 
709; Levy v. Superior Court, 167 U. S. 175; Bank v. Pennsylvania,-'!67 U. S. 461; Miller 

V. Railroad Co., 168 U. S. 131; Hodgson v. Vermont, 168 U. S. 262; Holden v. Hardy, 169 

U. S. 366; Savings Society v. Multnomah County, 169 U. S. 421; Smyth v. Ames, 169 

U. S. 466; Backus v. Depot Company, 169 U. S 577; Wilson v. North Carolina, 169 U. S. 
586; Williams v. Mississippi, 170* U. S. 213; Magoun v. Bank, 170 U. S. 283; Blake v. 
McClung, 172 U. S. 239; Clark v. Kansas City, 172 U. S. 334; Insurance Co. v. Daggs, 172 

U. S. 557; Wilson v. Eureka City, 173 U. S. 32; Loan Co. v. Campbell, 173 U. S. 84; 

Railway Co. v. Paul, 173 U. S. 404; Savings Bank v. Owensboro, 173 U. S. 636; Railway 
Co. V. Smith, 173 U. S. 684; Railroad Co. v. Matthews, 174 U. S. 96; Brown v. New Jersey, 
175 U. S. 172; Markuson v. Boucher, 175 U. S. 184; Tullis v. Railroad. 175 U. S. 348; 




38 


Art.XIV, § 1. CONSTITUTION OP THE UNITED STATES. 


Cummin^ v. Bd. of Education, 175 U. S. 528; Gundling- v. Chicag-o, 177 U. S. 183; Erb 
V. Morasch, 177 U. S. 584; Sully v. Bank, 178 U. S. 289; American Sugar Co. v. Louisiana, 
179 U. S. 89; Williams v. Fears, 179 U. S. 270; Railroad v. Jacobson, 179 U. S. 287; Mason 
V. Missouri, 179 U. S. 328; Railway v. Kentucky, 179 U. S. 388; Railway v. Ferris, 179 

U. S. 602; Lombard v. Park Commission, 181 U. S. 33; Detroit v. Parker, 181 U. S. 399; 
Mallet V. North Carolina, 181 U. S. 589; Carson v. Brocton Commission, 182 U. S. 398; 
Cotting V. Stockyards Co., 183 U. S. 79; Storti v. Massachusetts, 183 U. S. 138; Pinney 

V. Nelson, 183 U. S. 144; Railroad v. Reynolds, 183 U. S. 471; McChord v. Railroad, 183 

U. S. 483; Minder v. Georgia, 183 U. S. 559; Clark v. Titusville, 184 U. S. 329; Connolly 

V. Sewer Pipe Co., 184 U. S. 540; Coal Co. v. Illinois, 185 U. S. 203; Fidelity Life Ass’n v. 
Mettler, 185 U. S. 308; Ins. Co. v. Connecticut, 185 U. S. 364; Compagnie Francaise 
V. Board, 186 U. S. 380; Layton v. Missouri. 187 U. S. 356; Manley v. Park, 187 U. S. 547; 
Billings V. Illinois, 188 U. S. 97; Tarrance v. Florida, 188 U. S. 519; Kidd v. Alabama, 188 

U. S. 730; Sawyer v. Piper, 189 U. S. 154; Insurance Co. v. Dobney, 189 U. S. 301; Missouri 

V. Dockery, 191 U. S. 165; Atkin v. Kansas, 191 U. S. 207; Board v. Comptoir National, 191 

U. S. 388; Arbuckle v. Blackburn, 191 U. S. 405; Rogers v. Alabama, 192 U. S. 226; Railway 

V. Osborn, 193 U. S. 17; Railway v. Snell, 193 U. S. 30; Rippey v. Texas, 193 U. S. 504; 

Pope V. Williams, 193 U. S. 621; United States v. Sing Tuck, 194 U. S. 161; Railway v. 

May, 194 U. S. 267; Ohio, ex rel., v. L>ollison, 194 U. S. 445; Olsen v. Smith, 195 U. S. 332; 

Coulter V. Railway, 196 U. S. 599, Jacobson v. Massachusetts, 197 Q. S. 11; Kehrer 

V. Stewart, 197 U. S. 60; Oil Co. v. Texas, 197 U. S. 115: Supply Co. v. Power Co., 197 

U. S. 299; Railway v. Paving Co., 197 U. S. 430; Railway v. Savannah. 198 U. S. 392; 

Ah Sin y. Wittman, 198 U. S. 500; New York, ex rel., v. Commissioners, 199 U. S. 1; 

Carroll v. Insurance Co., 199 U. S. 401; Iron Co. v. Kline, 199 U. S. 593; Campbell v. 
California, 200 U. S. 87; Howard v. Kentucky, 200 U. S. 164; Martin v. Texas, 200 U. S. 
316; Railway v. Illinois, ex rel., 200 U. S. 561; Railway v. Powers, 201 U. S. 245; Cox 

V. Texas, 202 U. S. 446; Hodges v. -United States, 203 U. S. 1; Ins. Co. v. Riggs, 203 

U. S. 243; Martin v. Railroad Co., 203 U. S. 284; Gatewood v. North Carolina, 203 U. S. 

531; Cohen v. Brewster, 203 U. S. 543; Board of Education v. Illinois, 203 U. S. 553; 
Bachtel v. Wilson, 204 U. S. 36; New York, ex rel. Hatch, v. Reardon, 204 U. S. 152; 
Ballard v. Hunter, 204 U. S. 241; Bacon v. Walker, 204 U. S. 311; Bown v. Walling, 204 
U. S. 320; Western Turf Association v. Greenberg, 204 U. S. 359; Serra v. Mortiga, 204 
U. S. 470; Railroad v. Babcock, 204 U. S. 585; Wilmington Mining Co. v. Fulton, 205 U. S. 
60; Railroad v. North Carolina Commission, 206 U. S. 1; Raymond v. Traction Co., 207 

U. S. 20; Railway v. Seegers, 207 U. S. 73; Railway v. Massachusetts, 207 U. S. 79; 
Immber Co. v. Bank, 207 U. S. 251; Heath v. Worst, 207 U. S. 338; Rendering Co. v. 
Vermont, 207 U. S. 541; Darnell v. Memphis, 208 U. S. 113; Muller v. Oregon, 208 U. S. 
412; Phillips v. Mobile, 208 U. S. 472; Ughbanks v. Armstrong, 208 U. S. 481; Gesellschaft 

V. Umbreit, 208 U. S. 570; Ex parte Young, 209 U. S. 123; Thompson v. Kentucky, 209 

U. S. 340; Lang v. New Jersey, 209 U. S. 467; Railway v. Porter, 210 U. S. 177; Twining 

V, New Jersey, 211 U. S. 78; Telephone Co. v. Los Angeles, 211 U. S. 265; Bailey v. 

Alabama, 211 U. S. 452; Beers v. Glynn, 211 U. S. 477; Lemieux v. Young, 211 U. S. 489; 
McLean v. Arkansas, 211 U. S. 539; Wilcox v. Gas Co., 212 U. S. 19; Oil Co. v. Texas, 212 
U. S. 112; Packing Co. v. Arkansas, 212 U. S.. 322; United States, ex rel., v. Railway, 
213 U. S. 366; Murray v. Distilling Co., 213 U. S. 151; Welch v. Swasey, 214 U. S. 91; 
District of Columbia v. Brooke, 214 U. S. 138; Telegraph Co. v. Kansas, ex rel., 216 
U. S. 1; Pullman Co. v. Kansas, ex rel., 216 U. S. 56; Railway v. Kansas, ex rel., 216 U. S. 
262; Hill Cemetery v. San Francisco, 216 U. S. 358; Railway v. Greene, 216 U. S. 400; 
Williams v. Arkansas, 217 U. S. 79; Textbook Co. v. Pigg, 217 U. S. 91; Oil Co. v. Texas, 
217 U. S. 114; Oil Co. v. Tennessee, 217 U. S. 413; Citizens National Bank v. Kentucky, 217 
U. S. 443; Kidd, Dater Co. v. Grocer Co., 217 U. S. 461; Brown-Forman Co. v. Kentucky, 
217 U. S. 563; Railway v. Melton, 218 U. S. 36; Shevlin Co. v. Minnesota, 218 U. S. 57; 
Franklin v. South Carolina, 218 U. S. 161; Watson v. Maryland, 218 U. S. 173; Moffitt 

v. Kelly, 218 U. S. 400; Telegraph Co. v. Milling Co., 218 U. S. 406; United States v. 

Heinze, 218 U. S. 532; Railway v. Kentucky, 218 U. S. 551; Griffith v. Connecticut, 218 

U. S. 563; Mobile, Jackson and Kansas City R. R. v. Turnipseed, 219 U. S. 35; American 

Land Co. v. Zeiss, 219 U. S. 47; Noble State Bank v. Haskell, 219 U. S. 104 [motion for 
leave to file petition for rehearing denied, Noble State Bank v. Haskell, 219 U. S. 575]; 
Shallenberger v. First State Bank, 219 U. S. 114; Assaria State Bank v. Dolley, 219 U. S. 
121; Engel v. O’Malley, 219 U. S. 128; Kentucky Union Co. v. Kentucky, 219 U. S. 140; 
Bailey v. Alabama, 219 U. S. 219; House v. Mayes, 219 U. S. 270; Broadnax v. Missouri, 
219 U. S. 285; German Alliance Ins. Co. v. Hale, 219 U. S. 307; Chicago, Rock Island and 
I’acific Ry. v. Arkansas, 219 U. S. 453; Chicago, Burlington and Quincy R. R. v. McGuire, 
219 U. S. 549; Sperry & Hutchinson Co, v. Rhodes, 220 U. S. 502; Fifth Avenue Coach 
Co. V. New York, 221 U. S. 467 [affirming 194 N. Y. 19]; Provident Savings Association 

V. Malone, 221 U. S. 660; Arbuckle v. Blackburn, 191 U. S. 405, 14 O. F. D. 321; State v. 

Dollison. 194 U. S. 445, 14 O. F. D. 380; Bachtel v. Wilson, 204 U. S. 36, 15 O. F. D. 457; 

Railroad Co. v. Thiebaud. 114 Fed. 918, 12 O. F. D. 254, 258, 32 C. C. A. 538; The State 

of Ohio V. Hanlon, 77 O. S. 19; Bloomfield v. State, 86 O. S. 253; State, ex rel., v. Ferris, 
9 O. C. C. 298, 6 O. C. D. 158 [affirmed. State, ex rel., v. Ferris, 53 O. S. 314]; State, ex rel. 
Gard, v. Harmon, 3 O. C. C. (N.S.) 399, 13 O. C. D. 292 [affirmed, Harmon v. State, 66 O. S. 
249]; Lloyd v. Dollison, 3 O. C. C. (N.S.) 328, 13 O. C.. D. 571 [affirmed, no report. State v. 
Dollison, 68 O. S. 688]; Davies, Auditor, v. State, ex rel., 6 O. C. C. (N.S.) 417, 17 O. C. D. 
593 [reversed, Lucas Co. (auditor) v. State, 75 O. S. 114]; Wells v. State, 1 O. N. P. (N.S.) 
309, 14 O. D. (N.P.) 196; State v. Coats, 10 O. N. P. (N.S.) 349, 20 O. D. (N.P.) 561; Cross-Tie 
Co. V. Railway, 10 O. N. P. (N.S.) 412, 20 O. D. (N.P.) 565, 55 Bull (editorial) 381; Marvin v. 
Trout, 3 O. L. R. 550; State v. Norton, 5 O. N. P, 183, 7 O. D. (N.P.) 354; State v. Commis¬ 
sioners of Defiance Co., 7 O. N. P. 239, 1 O. D. (N.P.) 584; Roe v. Railway Co., 13 O. D. 
(N.P.) 260; Forging & Tool Co. v. Griffith, 18 O. D. (N.P.) 261. 




39 


CONSTITUTION OF THE UNITED STATES. Art.XIV, § 2. 


Section 2. Representatives shall be apportioned among the several States 
according to their respective numbers, counting the whole number of persons 
in each State, excluding Indians not taxed. But when the right to vote at any 
election for the choice of electors for President and Vice President of the United 
States, Representatives in Congress, the Executive and Judicial officers of a 
State, or the members of the Legislature thereof, is denied to any of the male 
inhabitants of such State, being twenty-one years of age, and citizens of the 
United States, or in any way abridged, except for participation in rebellion, or 
other crime, the basis of representation therein shall be reduced in the propor¬ 
tion which the number of such male citizens shall bear to the whole number 
of male citizens twenty-one years of age in such State. 

Minor v.. Happersett, 88 U. S. (21 Wall.) 162; United States v. Kagama, 118 U. S. 
375; McPherson v. Blacker, 146 U. S. 1; Pollock v. Trust Co., 157 U. S. 429. 

Section 3. No person shall be a Senator or Representative in Congress, or 
elector of President and Vice President, or hold any office, civil or military, 
under the United States, or under any State, who, having previously taken an 
oath, as a member of Congress, or as an officer of the United States, or as a 
member of any State legislature, or as an executive or judicial officer of any 
State, to support the Constitution of the United States, shall have engaged in 
insurrection or rebellion against the same, or given aid or comfort to the enemies 
thereof. But Congress may by a vote of two-thirds of each House, remove such 
disability. 

Worthy v. Commissioners, 76 U. S. (9 Wall.) 611. 


Section 4. The validity of the public debt of the United States, authorized 
by law, including debts incurred for payment of pensions and bounties for 
services in suppressing insurrection or rebellion, shall not be questioned. But 
neither the United States nor any State shall assume or pay any debt or obli¬ 
gation incurred in aid of insurrection or rebellion against the United States, 
or any claim for the loss or emancipation of any slave; but all such debts, 
obligations and claims shall be held illegal and void. 

Keith V. Clark, 97 U. S. 454. 


Section 5. The Congress shall have power to enforce, by appropriate legis¬ 
lation, the provisions of this article. 

Virginia v. Rives, 100 U. S. 313; Ex parte Virginia, 100 U. S. 339; United States 
V, Harris, 106 U. S. 629. 


ARTICLE XV. 

Section 1. The right of citizens of the United States to vote shall not be 
denied or abridged by the United States or by any State on account of race, color, 
or previous condition of servitude. 

White V. Hart, 80 U. S. (13 Wall.) 646; Slaughter House Cases, 83 U. S. (16 Wall.) 36; 
Hornbuckle v. Toombs, 85 U. S. (18 W^all.) 648; Minor v. Happersett, 88 U. S. (21 Wall.) 
162; United States v. Reese, 92 U. S. (2 Otto) 214; United States v. Cruikshank, 92 U. S. 
(2 Otto) 542; Ex parte Virginia, 100 U. S. (10 Otto) 339; Neal v. Delaware, 103 U. S. 
(13 Otto) 370; United States v. Harris, 106 U. S. (16 Otto) 629; Civil Rights Cases, 109 

U. S. 3; Elk V. Wilkins, 112 U. S. 94; Baldwin v. Franks, 120 U. S. 678; St. Louis v. Amy, 
120 U. S. 600; Logan v. United States, 144 U. S. 263; McPherson v. Blacker, 146 U. S. 1; 
United States v. Wong Kim Ark, 169 U. S. 649; Maxwell v. Dow, 176 U. S. 581; Giles 

V. Harris, 189 U. S. 475; James v. Bowman, 190 U. S. 127; Giles v. Teasley, 193 U. S. 146; 
Clyatt V. United States, 197 U. S. 207. 


Section 2. The Congress shall have power to enforce this article by appro¬ 
priate legislation. 




ANALYTICAL INDEX 

TO THE 

Constitution of the United States. 

AND THE 

AMENDMENTS THERETO. 


A. 

Art. 

Abridged. The privileges or immunities of citizens of the United States shall not be 

[Amendments.] . 14 

Absent members, in such manner and under such penalties as it may provide. Each 

House is authorized to compel the attendance of. 1 

Accounts of receipts and expenditures of public money shall be published from time to 

time. A statement of the. 1 

Accusation. In all criminal prosecutions the accused shall be informed of the cause and 

nature of the.[Amendments.] 6 

Accused shall have a speedy public trial. In all criminal prosecutions the [Amendments.] 6 

He shall be tried by an impartial jury of the State and district where the crime 

was committed .[Amendments.] 6 

He shall be informed of the nature of the accusation.[Amendments.] 6 

He shall be confronted with the witnesses against him.[Amendments.] 6 

He shall have compulsory process for obtaining witnesses in his favor. [Amend¬ 
ments.] . 6 

He shall have the assistance of counsel for his defense.[Amendments.] 6 

Actions at common law involving over twenty dollars shall be tried by jury. [Amend¬ 
ments.] . 7 


Sec. 

1 

6 

9 


Acts, records, and judicial proceedings of another State. Full faith and credit shall be 

given in each State to the. 4 

Acts. Congress shall prescribe the manner of proving such acts, records, and proceedings. 4 

Adjourn from day to day. A smaller number than a quorum of each House may. 1 

Adjourn for more than three days, nor to any other place than that in which they shall 
be sitting. Neither House shall, during the session of Congress, without the 
consent of the other. 1 


1 

1 

5 


5 


Adjournment the President may adjourn them to such time as he shall think proper. 

In case of disagreement between the two Houses as to. 2 


3 


Admiralty and maritime jurisdiction. The judicial power shall extend to all cases of_ 3 2 

Admitted by the Congress into this Union, but no new State shall be formed or erected 

within the jurisdiction of any other State. New States may be. 4 3 

Nor shall any State be formed by the junction of two or more States, or parts of 

States, without the consent of the legislatures and of Congress. 4 3 

Adoption of the Constitution, shall be valid. All debts and engagements contracted by 

the confederation, and before the. 6 

Advice and consent of the Senate. The President shall have power to make treaties by 

and with the . 2 2 

To appoint ambassadors or other public ministers and consuls by and with the.... 2 2 

To appoint all other officers of the United States, not herein otherwise provided 

for, by and with the. 2 2 

Affirmation. Senators sitting to try impeachments shall be on oath or. 1 3 

To be taken by the President of the United States. Form of the oath or. 2 1 

No warrants shall be issued but upon probable cause and on oath or [Amendments.] 4 


To support the Constitution. Senators and Representatives, members of State 
legislatures, executive and judicial officers, both State and Federal, shall be 
bound by oath or. 


a. 


1 

7 


1 


4 


1 

1 

1 

1 

2 

2 

2 

6 

7 


4-0 


6 


3 


























INDEX TO THE CONSTITUTION OP THE UNITED STATES. 


41 


Age. No^person shall be a Representative who shall not have attained twenty-five years 

No person shall be a Senator who shali not have" attained thirty* years of . ^ 

or compact with another State without the consent of Congress. No State 
shall enter into any. 

Aid and Tpason against the United States shall consist in levying war against 

them, adhering to their enemies, and giving them. 

Alliance or confederation. No State shall enter into any treaty of...'.!!!.....!.!'.!...!!.*. 

or other public ministers and consuls. The President may appoint.!! 

^ judicial power of the United States shall extend to all cases affecting. 

to the Cons^ Whenever two-thirds of both Houses shaU deem it 

necessary, Congress shall propose. 

^^^fourth^^of Uie^"states^^^ legislatures of, or by conventions in, three- 


Answer for a capital or infamous crime unless on presentment of a grand jury. No per- 

son shall be held to.[Amendments.] 

except in cases in the land or naval forces, or in the militia when in actual 

service .[Amendments.] 

Appellate jurisdiction, both as to law and fact, with such exceptions and under such regu¬ 
lations as Congress shall make. In what cases the Supreme Court shall have.. 
Application of the legislature or the executive of a State. The United States shall pro¬ 
tect each State against invasion and domestic violence on the. 


Application of the legislature of two-thirds of the States, Congress shall call a conven¬ 
tion for proposing amendments to the Constitution. On the. 

Appointment of officers and authority to train the militia reserved to the States respec¬ 
tively . 

Of such inferior officers as they may think proper in the President alone. Congress 

may by law, vest the. 

In the courts of law, or in the heads of departments. Congress may, by law, vest 
the . 


Apportionment of representation and direct taxation among the several States. Pro¬ 
visions relating to the [Repealed by Sec. 2 of Fourteenth Amendment.]. 

Of Representatives among the several States. Provisions relating to the [Amend¬ 
ments.] . 

Appropriate legislation. Congress shall have power to make all laws necessary and proper 
for carrying into execution the foregoing powers, and all other powers vested 
by the Constitution in the Government of the United States, or in any depart¬ 
ment or officer thereof... 

Congress shall have power to enforce the Thirteenth Article, prohibiting slavery by 

[Amendments.] . 

Congress shall have power to enforce the provisions of the Fourteenth Article by 

[Amendments.] . 

Congress shall have power to enforce the provisions of the Fifteenth Article by 
[Amendments.] . 

Appropriation of money for raising and supporting armies shall be for a longer term 

than two years. But no . 

Appropriations made by law. No money shall be drawn from the Treasury but in con¬ 
sequence of . 

Approve and sign a bill before it shall become a law. The President shall. 

He shall return it to the House in which it originated, with his objections, if he 
do not . 


Art. 

1 

1 

1 

3 

1 

2 

3 

5 

5 

5 

5 

5 

3 

4 

5 
1 
2 
2 
1 

14 


1 

13 

14 

15 

1 

1 

1 

1 


Armies, but no appropriation for that use shall be for a longer term than two years. 

Congress shall have power to raise and support. 1 

Armies. Congress shall make rules for the government and regulation of the land and 

naval forces . 1 

Arms shall not be infringed. A well-regulated militia being necessary to the security of 

a free State, the right of the people to keep and bear.[Amendments.] 2 

Arrest during their attendance at the session of their respective Houses, and in going to 
and returning from the same. Members shall in all cases, except treason, felony, 
and breach of the peace, be privileged from. 1 

Arsenals. Congress shall exercise exclusive authority over all places purchased for the 

erection of . 1 


Articles exported from any State. No tax or duty shall be laid on. 1 

Arts by securing to authors and inventors their patent rights. Congress may promote 

the progress of science and the useful. 1 

Assistance of counsel for his defense. In all criminal prosecutions the accused shall 

have the .[Amendments.] 6 

Assumption of the debt or obligations incurred in aid of rebellion or insurrection against 

the United States. Provisions against the.[Amendments.] 14 

Attainder or ex post facto law shall be passed. No bill of. 1 

Attained, ex post facto law, or law impairing the obligation of contracts. No state shall 

pass any bill of. 1 

Attainder of treason shall not work corruption of blood or forfeiture, except during the 

life of the person attainted. 3 

Authors and inventors the exclusive right to their writings and inventions. Congress 

shall have power to secure to. 1 


Sec. 

2 

3 

10 

3 

10 

2 

2 


2 

4 


8 

2 

2 

2 

2 


8 

2 

6 

2 

8 

9 

7 

7 

8 
8 


6 

8 

0 

8 


4 

9 

10 

3 

8 


Cl. 

2 

3 

3 

1 

1 

2 

1 


2 


16 

2 

2 

3 


18 


12 

7 

2 

2 

12 

14 


1 

17 

5 

8 


3 

1 

2 

8 














































42 INDEX TO THE CONSTITUTION OP THE UNITED STATES. 


B. 

Bail. Excessive bail shall not be required, nor excessive fines nor cruel and unusual 


punishments imposed .[Amendments.] 

Ballot for President and Vice-President. The electors shall vote by.[Amendments.] 

Ballot. If no person have a maiority of the electoral votes for President and Vice- 
President, the House of Representatives shall immediately choose the President 
by .[Amendments.] 


Bankruptcies. Congress shall have power to pass uniform laws on the subject of. 

Basis of representation among the several States. Provisions relating to the [Amend¬ 
ments.] . 

Bear arms shall not be infringed. A well-regulated militia being necessary to the secu¬ 
rity of a free State, the right of the people to keep and.[Amendments.] 

Behavior. The judges of the Supreme and inferior courts shall hold their offices during 

good . 

Bill of attainder or ex post facto law shall be passed. No. 

Bill of attainder, ex post facto law, or law impairing the obligations of contracts. No 

State shall pass any. 

Bills of credit. No state shall emit. 

Bills for raising revenue shall originate in the House of Representatives. All. 

Bills which shall have passed the Senate and House of Representatives shall, before they 

become laws, be presented to the President. 

If he approve, he shall sign them; if he disapprove, he shall return them, with his 

objections, to that House in which they originated. 

Upon the reconsideration of a bill returned by the President, with his objections, 

if two-thirds of each House agree to pass the same, it shall become a law. 

Upon the reconsideration of a bill returned by the President, the question shall 

be taken by yeas and nays. 

Not returned by the President within ten days (Sundays excepted), shall, unless 

Congress adjourn, become laws. 

Borrow money on the credit of the United States. Congress shall have power to. 

Bounties and pensions, shall not be questioned. The validity of the public debt incurred 
in suppressing insurrection and rebellion against the United States, including 

the debt for .[Amendments.] 

Breach of the peace, shall be privileged from arrest while atending the session, and in 
going to and returning from the same. Senators and Representatives, except 
for treason, felony, and. 

Bribery, or other high crimes and misdemeanors. The President, Vice-President, and all 
civil officers shall be removed on impeachment for, and conviction of, treason.. 


Art. Sec. Cl. 

8 

12 

12 

18 4 

14 2 

2 

3 1.. 

19 1 

1 10 1 

1 10 1 

17 1 

17 2 

17 2 

1 7 2 

17 2 

17 2 

18 2 

14 4 

16 1 

2 4 


c. 


X 


Capital or otherwise infamous crime, unless on indictment of a grand jury, except in 

certain specified cases. No person shall be held to answer for a [Amendments.] 6 

Capitation or other direct tax shall be laid unless in proportion to the census or enumera¬ 
tion. No . 1 

Captures on land and water. Congress shall make rules concerning. 1 

Casting vote. The Vice-President shall have no vote unless the Senate be equally divided. 1 

Census or enumeration of the inhabitants shall be made within three years after the first 

meeting of Congress, and within every subsequent term of ten years thereafter. 1 
Census or enumeration. No capitation or other direct tax shall be laid except in pro¬ 
portion to the. 1 

Chief Justice shall preside when the President of the United States is tried upon impeach¬ 
ment. The . 1 

Choosing the electors and the day on which they shall give their votes, which shall be 

the same throughout the United States. Congress may determine the time of.. 2 

Citizen of the United States at the adoption of the Constitution shall be eligible to the 

office of President. No person not a natural-born. 2 

Citizen of the United States. No person shall be a Senator who shall not have attained 

the age of thirty years, and been nine years a. 1 

No person shall be a Representative who shall not have attained the age of twenty- 

five years, and been seven years a... 1 

Citizenship. Citizens of each State shall be entitled to all the privileges and immunities 

of citizens of the several States. 4 

All persons born or naturalized in the United States, and subject to the juris¬ 
diction thereof, are citizens of the United States, and of the State in which 

they reside . ...[Amendments.] 14 

No state shall make or enforce any law which shall abridge the privileges or immu¬ 
nities of citizens of the United States.[Amendments.] 14 

Nor shall any State deprive any person of life, liberty, or property, without due 

process of law .[Amendments.] 14 

Nor deny to any person within its jurisdiction the equal protection of the laws. 

[Amendments.] . 14 

Citizens or subjects of a foreign state. The judicial power of the United States shall not 
extend to suits in law or equity brought against one of the States by the citi¬ 
zens of another State, or by.[Amendments.] 11 

Civil oMcers of the United States shall, on impeachment for, and conviction ot, treason, 

bribery, and other high crimes and misdemeanors, be removed. All. 2 


9 4 

8 11 

3 4 

2 8 

9 4 

3 6 

1 3 

1 4 

3 3 

2 2 

2 1 

1 

1 

1 

1 

4 




































INDEX TO THE CONSTITUTION OP THE UNITED STATES. 


43 


Claims of the United States or any particular State in the territory or public property. 

Nothing in this Constitution shall be construed to prejudice. 4 3 2 

Classification of Senators. Immediately after they shall be assembled after the first elec¬ 
tion, they shall be divided as equally as may be into three classes. 13 2 

The seats of the Senators of the first class shall be vacated at the expiration of 

the second year . 1 3 

The seats of the Senators of the second class at the expiration of the fourth year. 1 3 

The seats of the Senators of the third class at the expiration of the sixth year. 1 3 

Coin a tender in payment of debts. No State shall make anything but gold and silver.. 1 10 1 

Coin money and regulate the value thereof, and of foreign coin. Congress shall have 

power to . 18 5 

Coin of the United States. Congress shall provide for punishing the counterfeiting 

the securities and current. 18 6 

Color, or previous condition of servitude. The right of citizens of the United States to 
vote shall not be denied or abridged by the United States, or by any State, on 


Comfort. Treason against the United .States shall consist in levying war against them, 

and giving their enemies aid and... 3 3 1 

Commander-in-chief of the Army and Navy, and of the militia when in actual service. 

The President shall be. 2 2 1 

Commerce with foreign nations, among the States, and with Indian tribes. Congress 

shall have power to regulate. 18 3 

Commerce or revenue. No preference shall be given to the ports of one State over those 

of another by any regulation of. 19 6 

Vessels clearing from the ports of one State shall not pay duties in those of another. 19 6 

Commissions to expire at the end of the next session. The President may fill vacancies 

that happen in the recess of the Senate by granting. 2 2 3 

Common defense, promote the general welfare, etc. To insure the.[Preamble.] 

Common defense and general welfare. Congress shall have power to provide for the_ 18 1 

Common law, where the amount involved exceeds twenty dollars, shall be tried by jury. 


No fact tried by a jury shall be otherwise re-examined in any court of the United 

States than according to the rules of the.[Amendments.] 7 

Compact with another State. No State shall, without the consent of Congress, enter 

into any agreement or . 1 10 3 

Compact with a foreign power. No State shall, without the consent of Congress, enter 

into any agreement or. 1 10 3 

Compensation of Senators and Rperesentatives to be ascertained by law. 16 1 

Compensation of the President shall not be increased nor diminished during the period 

for which he shall be elected. 2 16 

Compensation of the judges of the Supreme and inferior courts shall not be diminished 

during their continuance in office.. .1 1 

Compensation. Private property shall not be taken for public use without just. [Amend¬ 
ments.] . 5 

Compulsory process for obtaining witnesses in his favor. In criminal prosecutions the 

accused shall have.[Amendments.] 6 

Confederation. No state shall enter into any treaty, alliance, or.. 1 10 1 

All debts contracted and engagements entered into before the adoption of this 

Constitution shall be valid against the United States under it, as under the_ 6 .. 1 

Confession in open court. Conviction of treason shall be on the testimony of two per¬ 
sons to the overt act, or upon. 3 3 1 

Congress of the United States. All legislative powers shall be vested in a. 1 1 

Shall consist of a Senate and House of Representatives. 1 1 

Shall assemble at least once in every ypr, which shall be on the first Monday of 

December, unless they, by law, appoint a different day. 14 2 

May at any time alter regulations for elections of Senators and Representatives, 

except as to the places of choosing Senators. 14 1 

Each House shall be the judge of the elections, returns, and qualifications of its 

own members . 1 5 1 

A majority of each House shall constitute a quorum to do business. 15 1 

A smaller number may adjourn from day to day and compel the attendance of 

absent members . 1 6 1 

Each House may determine the rules of its proceedings, punish its members for 

disorderly behavior, and, with the concurrence of two-thirds, expel a member.. 15 2 

Each House shall keep a journal of its proceedings. 15 3 

Neither House, during the session of Congress, shall, without the consent of the 

other, adjourn for more than three days. 15 4 

Senators and Representatives shall receive a compensation to be ascertained by law. 16 1 

They shall in all cases, except treason, felony, and breach of the peace, be priv¬ 
ileged from arrest during attendance at their respective Houses, and in going 

to and returning from the same... 16 1 

No Senator or Representatives shall, during his term, be appointed to any civil 
office which shall have been created, or of which the emoluments shall have 

been increased, during such term. 16 2 

No person holding any office under the United States shall, while in office, be a 

member of either House of Congress. 16 2 

All bills for raising revenue shall originate in the House of Representatives. 17 1 

Proceedings in cases of bills returned .by the President with his objections.^ 17 2 

Shall have power to lay and collect duties, imposts, and excises, pay the debts," 

and provide for the common defense and general welfare. 18 1 

Shall have power to borrow money on the credit of the United States. 18 2 


ho bd td 












































44 INDEX TO THE CONSTITUTION OP THE UNITED STATES. 


Congress of the United States. To regulate foreign and domestic commerce, and with the 

Indian tribes .....* 

To establish uniform rule of naturalization and uniform laws on the subject of 

bankruptcies .•..•.... 

To coin money, regulate its value and the value of foreign coin, and to fix the 

standard of weights and measures..;. 

To punish the counterfeiting the securities and current coin of the United States. 

To establish post-offices and post-roads. 

To promote the progress of science and the useful arts. 

To constitute tribunals inferior to the Supreme Court... 

To define and punish piracies and felonies on the high seas, and to punish offenses 

against the law of nations.... 

To declare war, grant letters of marque and reprisal, and make rules concerning 

caotures on land and water... 

To raise and support armies; but no appropriation of money to that use shall be 

for a longer term than two years. 

To provide and maintain a Navy. 

To make rules for the government of the Army and Navy... 

To call out the militia to execute the laws, suppress insurrections, and repel 

invasions .... 

To provide for organizing, arming, and equipping the militia. 

To exercise exclusive legislation over the District fixed for the seat of government, 

and over forts, magazines, arsenals, and dockyards.. 

To make all laws necessary and proper to carry into execution all powers vested 

by the Constitution in the Government of the United States. 

No person holding any office under the United States shall accept of any present, 
emolument, office, or title of any kind from any foreign state, without the con¬ 
sent of .;. 

May determine the time of choosing the electors for President and Vice-President, 

and the day on which they shall give their votes. 

The President may, on extraordinary occasions, convene either House of. 

The manner in which the acts, records, and judicial proceedings of the States 

shall be prescribed by . 

New States may be admitted by Congress into this Union. 

Shall have power to make all needful rules and regulations respecting the terri¬ 
tory or other property belonging to the United States. 

Amendments to the Constitution shall be proposed whenever it shall be deemed 

necessary by two-thirds of both houses of. 

Persons engaged in insurrection or rebellion against the United States disqual¬ 
ified for Senators or Representatives in.[Amendments.] 

But such disqualification may be removed by a vote of two-thirds of both Houses of. 

[Amendments.] . 

Shall have power to enforce, by appropriate legislation, the Thirteenth Amend¬ 
ment .[Amendments.] 

Shall have power to enforce, by appropriate legislation, the Fourteenth Amend¬ 
ment .[Amendments.] 

Shall have power to enforce, by appropriate legislation, the Fifteenth Amendment. 
[Amendments.] ... 


Art. Sec. 

1 - 8 

1 8 

1 8 

1 8 

1 8 

1 8 

1 8 

1 8 

1 8 

1 8 

1 8 

1 8 

1 8 

1 8 

1 8 

1 8 

1 9 

2 1 

2 3 

4 1 

4 3 

4 3 

5 

14 3 

14 3 

13 2 

14 5 

15 2 


Consent. No State shall be deprived of its equal suffrage in the Senate without its. 5 

Consent of Congress. No person holding any office of profit or trust under the United 
States shall acc-"pt of any present, emolument, office, or title of any kind what¬ 
ever, from any king, prince, or foreign potentate, without the. 1 9 

No State shall lay any imposts, or duties on imports, except what may be abso¬ 
lutely necessary for executing its inspection laws, without the. 1 10 

No State shall lay any duty of tonnage, keep troops or ships of war in time of 

peace, without the. 1 10 

No State shall enter into any agreement or compact with another State, or with a 

foreign power, without the. 1 10 

No State shall engage in war unless actually invaded, or in such imminent danger 

as will not admit of delay, without the.'. 1 10 

No new state shall be formed or erected within the jurisdiction of any other State, 
nor any State be formed by the junction of two or more States, or parts of 
States, without the consent of the legislatures thereof, as well as the. 4 3 

Consent of the legislature of the State in which the same may be. Congress shall exer¬ 
cise exclusive authority over all places purchased for the erection of forts, mag¬ 
azines, arsenals, dockyards, and other needful buildings, by the. 1 8 

Consent of the legislatures of the States and of Congress. No State shall be formed by 

the junction of two or more States, or parts of States, without the. 4 3 

Consent of the other. Neither Flouse, during the session of Congress, shall adjourn for 
more than three days, nor to any other place than that in which they shall be 
sitting, without the. 1 5 

Consent of the owner. No soldier shall be quartered, in time of peace, in any house with¬ 
out the .[Amendments.] 3 

Consent of the Senate. The President shall have power to make treaties, by and with the 

advice and . 2 2 

The President shall appoint ambassadors, other public ministers and consuls, judges 
of the Supreme Court, and all other officers created by law, and not otherwise 

herein provided for, by and with the advice and. 2 2 

Constitution in the Government of the United States, or in any department or officer 
thereof. Congress shall have power to pass all laws necessary to the execution 

of the powers vested by the. 1 g 

Constitution, shall be eligible to the office of President. No person except a natural- 

born citizen, or a citizen at the time of the adoption of the. 2 1 

Constitution. The President, before he enters upon the execution of his office, shall take 

an o.ath to preserve, protect, and defend the. 2 1 


















































INDEX TO THE CONSTITUTION OF THE UNITED STATES. 


45 


Constitution, laws, and treaties of the United States. The judicial power shall extend to 

all cases arising under the. 

Constitution shall be so construed as to prejudice any claims of the United States, or of 
any State (in respect to territory or other property of the United States). Noth¬ 
ing in the. 

Constitution. The manner in which amendments may be proposed and ratified. 

Constitution as under the Confederation shall be valid. All debts and engagements con¬ 
tracted before the adoption of the. 

Constitution and the laws made in pursuance thereof, and all treaties made, or which 
shall be made, by the United States, shall be the supreme law of the land. The 
The judges in every State, anything in the Constitution or laws of a State to the 

contrary notwithstanding, shall be bound thereby. 

Constitution. All officers, legislative, executive, and judicial, of the United States, and 

of the several States, shall be bound by an oath to support the. 

But no religious test shall ever be required as a qualification for any office or pub¬ 
lic trust . 

Constitution between the States so ratifying the same. The ratification of the conven¬ 
tions of nine States shall be sufficient for the establishment of the. 

Consitution, of certain rights, shall not be construed to deny or disparage others retained 

by the people. The enumeration in the.[Amendments.] 

Constitution, nor prohibited by it to the States, are reserved to the State respectively, or 
to the people. Powers not delegated to the United States by the [Amendments.] 
Constitution, and then engaged in rebellion against the United States. Disqualification 
for office imposed upon certain class of persons who took an oath to support 

the .[Amendments.] 

Constitution. Done in convention by the unanimous consent of the States present, Sep¬ 
tember 17, 1787 . 

Contracts. No state shall pass any ex post facto law, or law impairing the obligation of.. 
Controversies to which the United States shall be a party: between two or more States; 

between a State and citizens of another State; between citizens of different 
States; between citizens of the same State claiming lands under grants of differ¬ 
ent States; between a State or its citizens and foreign states, citizens, or sub¬ 
jects. The judicial power shall extend to. 

Convene Congress, or either House, on extraordinary occasions. The President may. 

Convention for proposing amendments to the Constitution. Congress, on the application 

of two-thirds of the legislatures of the States, may call a. 

Convention, by the unanimous consent of the States present on the 17th of September, 

1787. Adoption of the Constitution in. 

Conventions of nine States shall be sufficient for the establishment of the Constitution. 

The ratification of the. 


Conviction in cases of impeachment shall not be had without the concurrence of two- 

thirds of the members present. 

Copyrights to authors for limited times. Congress shall have power to provide for. 

Corruption of blood. Attainder of treason shall not work. 


Counsel for his defense. In all criminal prosecutions the accused shall have the assist¬ 
ance of .[Amendments.] 

Counterfeiting the securities and current coin of the United States. Congress shall pro¬ 
vide for the punishment of. 

Courts. Congress shall have power to constitute tribunals inferior to the Supreme Court. 
Courts of Law. Congress may, by law, vest the appointment of such inferior officers as 
they think proper, in the President alone, in the heads of departments, or in the 
Courts as Congress may establish. The judicial power of the United States shall be 

vested in one Supreme Court, and such inferior. 

\Courts. The judges of the Supreme and inferior courts shall hold their offices during 

good behavior .... 

Their compensation shall not be diminished during their continuance in office. 

Credit. No State shall emit bills of..'. 


Credit of the United States. Congress shall have power to borrow money on the. 

Credit shall be given in every other State to the public acts, records, and judicial pro¬ 
ceedings of each State. Full faith and. 

Crime, unless on a presentment of a grand jury. No person shall be held to answer for 

a capital or otherwise infamous.[Amendments.] 

Except in cases of military and naval forces, or in the militia when in actual 

service .[Amendments.] 

Crimes and misdemeanors. The President, Vice-President, and all civil officers shall be 
removed on impeachment for, and conviction of, treason, bribery, or other. 


Crimes, except in cases of impeachment, shall be tried by jury. All...._. 

They shall be tried in the State within which they may be committed. 

When not committed in a State, they shall be tried at the places which Congress 

may, by law, have provided. 

Criminal prosecutions, the accused shall have a speedy and public trial by jury in the 

State and district where the crime was committed. In all..[Amendments.] 

He shall be informed of the nature and cause of the accusation [Amendments.] 

He shall be confronted with the witnesses against him.....[Amendments.] 

He shall have compulsory process for obtaining witnesses in his favor. [Amend- 


He shall have the assistance of counsel in his defense.[Amendments.] 

Criminate himself. No person as a witness shall be compelled to.[Amendments.] 

Cruel and unusual punishments inflicted. Excessive bail shall not be required, nor exces¬ 
sive fines imposed, nor.[Amendments.] 


Art. 

3 

4 

5 

6 
6 
6 
6 
6 
7 

9 

10 


14 

7 

1 


3 

2 

5 
7 

7 

1 

1 

3 

6 

1 

1 

2 

3 

3 

3 
1 
1 

4 

5 

5 

2 

3 

3 

3 

6 
6 
6 

6 

6 

5 

8 


Sec. 

2 

3 


3 


10 


2 

3 


3 

8 

3 


8 

8 

2 

1 

1 

1 

10 

8 

1 


4 

2 

2 

2 


Cl. 


1 

2 

1 

2 

2 

3 

3 


1 


1 


6 

8 

2 


6 

9 

2 


1 

2 


8 

8 

3 












































46 INDEX TO THE CONSTITUTION OP THE UNITED STATES. 


D. 

Danger as will not admit of delay. No State shall without the consent of Congress, 

engage in war, unless actually invaded, or in such imminent. 

Day on which they shall vote for President and Vice-President, which shall be the 
same throughout the United States. Congress may determine the time of 

choosing the electors, and the. 

Day to day and may be authorized to compel the attendance of absent members. A 

smaller number than a quorum of each House may adjourn from. 

Death, resignation, or inability of the President, the powers and duties of his office 

shall devolve on the Vice-President. In case of the. 

Death, resignation, or inability of the President. Congress may provide, by law, for the 

case of the removal . 

Debt of the United States, including debts for pensions and bounties incurred in sup¬ 
pressing insurrection or rebellion, shall not be questioned. The validity of 

the public .[Amendments.] 

Debts. No State shall make anything but gold and silver coin a tender in payment of.... 
Debts and provide for the common defense and general welfare of the United States. 

Congress shall have power to pay the. 

Debts and engagements contracted before the adoption of this Constitution shall be as 

valid against the United States, under it, as under the Confederation. 

Debts or obligations incurred in aid of insurrection or rebellion against the United 
States, or claims for the loss or emancipation of any slave. Neither the United 

States nor any State shall assume or pay any.[Amendments.] 

Declare war, grant letters of marque and reprisal, and make rules concerning captures 

on land and water. Congress shall have power to. 

Defense promote the general welfare, etc. To insure the common.[Preamble.] 

Defense and general welfare throughout the United States. Congress shall have power 
to pay the debts and provide for the common. 

Defense. In all criminal prosecutions the accused shall have the assistance of counsel 

for his .[Amendments.] 

Delaware entitled to one Representative in the first Congress. 

Delay. No State shall, without the consent of Congress, engage in war unless actually 

invaded, or in such imminent danger as will not admit of. 

Delegated to the United States, nor prohibited to the States, are reserved to the States, 

or to the people. The powers not.[Amendments.] 

Deny or disparage others retained by the people. The enumeration in the Constitution 

of certain rights shall not be construed to...[Amendments.] 

Departments upon any subject relating to their duties. The President may require the 

written opinion of the principal officers in each of the executive. 

Departments. Congress may by law vest the appointment of inferior officers in^the 

heads of . 

Direct tax shall be laid unless in proportion to the census or enumeration. No capita¬ 
tion or other . 

Direct taxes and Representatives, how apportioned among the several States. [Repealed 
by the second section of the Fourteenth Amendment. 

Disability of the President and Vice-President. Provisions in case of the. 

Disability. No person shall be a Senator or Representative in Congress, or presidential 
elector, or hold any office, civil or military, under the United States, or any 
State, who, having previously taken an oath as a legislative, executive, or ju¬ 
dicial officer of the United States, or of any State, to support the Constitution, 
afterward engaged in insurrection or rebellion against the United States. 

[Amendments.] . 

But Congress may, by a vote of two-thirds of each House, remove such [Amend¬ 
ments.] . 


Art. 

1 

2 

1 

2 

2 

14 

1 

1 

6 

14 

1 


1 

6 

1 

1 

10 

9 

2 

2 

1 

1 

2 


14 

14 


Disagreement between the two Houses as to the time of adjournment, the President may 

adjourn them to such time as he may think proper. In case of. 2 

Disorderly behavior. Each House may punish its members for. 1 

And with the concurrence of two-thirds expel a member. 1 

Disparage others retained by the people. The enumeration in the Constitution of cer¬ 
tain rights shall not be construed to deny or.[Amendments.] 9 

Disqualification. No Senator or Representative shall, during the time for which he was 
elected, be appointed to any office under the United States which shall have 

been created, or its emoluments increased, during such term. 1 

No person holding any office under the United States shall be a member of either 

House during his continuance in office. 1 

No person shall be a member of either House, presidential elector, or hold any 
office under the United States, or any State, who, having previously sworn to 
support the Constitution, afterward engaged in insurrection or rebellion. 

[Amendments.] . 14 

But Congress may, by vote of two-thirds of each House, remove such disability. 

.-. [Amendments.] 14 

District of Columbia. Congress shall exercise exclusive legislation in all cases over the.,.. i 

Dockyards. Congress shall have exclusive authority over all places purchased for the 

erection of . 1 

Domestic tranquility, provide for the common defense, etc. To insure.[Preamble.] 

Domestic violence. The United States shall protect each State against invasion and. 4 


Sec, Cl. 

10 8 

1 8 

5 1 

1 6 

1 6 

4 

10 1 

8 1 

1 

4 

8 11 

8 1 

2 3 

10 3 

2 1 

2 2 

9 4 

2 3 

1 6 

3 
3 

3 

5 2 

5 2 


6 2 

6 2 

3 

3 

8 17 

8 17 

4 






































INDEX TO THE CONSTITUTION OP THE UNITED STATES. 


47 


Art. Sec. Q. 

Due process of law. No person shall be compelled, in any criminal case, to be a witness 


against himself, nor be deprived of life, liberty, or property without [Amend¬ 
ments.] . 6 

No State shall deprive any person of life, liberty, or property, without [Amend¬ 
ments.] ... 14 1 

Duties and powers of the office of President, in case of his death, removal, or inability to 

act, shall devolve on the Vice-President. 2 1 6 

In case of the disability of the President and Vice-President, Congress shall declare 

what officer shall act. 2 16 

Duties, imposts, and excises. Congress shall have power to lay and collect taxes. 18 1 

Shall be uniform throughout the United States. 18 1 

Duties shall be laid on articles exported from any State. No tax or. 19 6 

Duties in another State. Vessels clearing in the ports ot one State shall not be obliged 

to pay .. 1 9 (5 

On imports and exports, without the consent of Congress, except where necessary 

for executing its inspection laws. No State shall lay any. 1 10 2 

The net produce of all such duties shall be for the use of the Treasury of the 

United States. 1 10 

All laws laying such duties shall be subject to the revision and control of Congress.. 1 10 

Duty of tonnage without the consent of Congress. No State shall lay any.. 1 10 3 


E. 


Election of President and Vice-President. Congress may determine the day for the.... 

Shall be the same throughout the United States. The day of the. 

Elections for Senators and Representatives. The legislatures of the States shall prescribe 

the times, places, and manner of holding. 

But Congress may, at any time, alter such regulations, except as to the places of 

choosing Senators . 

Returns and qualifications of its own members. Each house shall be the judge of 

the . 

Electors for members of the House of Representatives. Qualifications of. 

Electors for President and Vice-President. Each State shall appoint, in such manner as 
the legislature thereof may direct, a number of electors equal to the whole 
number of Senators and Representatives to which the State may be entitled in 

the Congress .. 

* But no Senator or Representative, or person holding an office of trust or profit 

under the United States, shall be appointed an elector. 

Congress may determine the time of choosing the electors, and the day on which 

they shall give their votes. 

Which day shall be the pme throughout the United States. 

The electors shall meet in their respective States and vote, by ballot, for President 
and Vice-President, one of whom, at least, shall not be an inhabitant of the 

same State with themselves.[Amendments.] 

Shall name, in their ballots, the person voted for as President; and in distinct ballots 

the person voted for as Vice-President.[Amendments.] 

They shall make distinct lists of the persons voted for as President, and of persons 
voted for as Vice-President, which they shall sign and certify, and transmit, 
sealed, to the seat of government, directed to the President of the Senate. 

[Amendments.] ...... ;•••.*; . 

No person having taken an oath as a legislative, executive, or judicial officer of 
the United States, or of any State, and afterwards engaged in insurrection or 

rebellion against the United States, shall be an elector.[Amendments.] 

But Congress may, by a vote of two-thirds of each House, remove such disability. 

[Amendments.] . 

Emancipation of any slave shall be held to be illegal and void. Claims for the loss or. 

[Amendn ents.] . 

Emit bills of credit. No State shall. 

Emolument of any kind from any king, prince, or foreign state, without the consent of 
-Congress, No person holding any office under the United States shall accept 

any . 

Enemies. Treason shall consist in levying war against the United States, in adhering to, 

or giving aid and comfort to their. 

Engagements contracted before the adoption of this Constitution shall be valid. All 

debts and . 

Enumeration of the inhabitants shall be made within three years after the first meeting 

of Congress, and within every subsequent term of ten years thereafter. 

Ratio of representation not to exceed one for every 30,000 until the first enumera¬ 
tion shall be made. 

Enumeration in the Constitution of certain rights shall not be construed to deny or dis¬ 
parage others retained by the people. The.[Amendments.] 

Eaual protection of the laws. No State shlall deny to any person within its jurisdiction 
.[Amendments.] 

Equal suffrage in the Senate. No State shall be deprived, without its consent, of its- 

Establishment of this Constitution between the States ratifying the same. The ratifica¬ 
tion of nine States shall be sufficient for the. 

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual 

punishments inflicted .[Amendments.] 

Excises Congress shall have power to lay and collect taxes, duties, imposts, and. 

Shall be uniform throughout the United States. All duties, imposts, and. 


2 

2 

1 

1 

1 

1 


2 

2 

2 

2 

12 

12 


12 

14 

14 

14 

1 

1 

3 

6 

1 

1 

9 

14 

5 

7 

8 
1 
1 


1 

1 

4 

4 

5 
2 


1 

1 

1 

1 


3 

3 

4 

10 

9 

3 


2 

2 


1 


8 

8 


3 

3 

I 

1 

1 

1 


2 

2 

3 

3 


1 

8 

1 

1 

3 

3 


1 

1 











































48 INDEX TO THE CONSTITUTION OF THE UNITED STATES. 


Art. Sec. 


Exclusive legislation, in all cases, over such district as may become the seat of govern¬ 
ment. Congress shall exercise. 1 8 

Over all places purchased for the erection of forts, magazines, arsenals, dock¬ 
yards, and other needful buildings. Congress shall exercise. 1 8 

Executive of a State. The United States shall protect each State against invasion and 

domestic violence, on the application of the legislature or the. 4 4 

Executive and judicial officers of the United States, and of the several States, shall be 

bound by an oath to support the Constitution. 6 

Executive departments. On subjects relating to their duties, the President may require the 

written opinions of the principal officers in each of the. 2 2 

Congress may, by law, vest the appointment of inferior officers in the heads of.... 2 2 

Executive power shall be vested in a President of the United States of America. The- 2 1 

Expel a member. Each house, with the concurrence of two-thirds, may. 1 6 

Expenditures of public money shall be published from time to time. A regular state¬ 
ment of the receipts and. 1 9 

Exportations from any State. No tax or duty shall be laid on. 1 9 

Exports or imports, except upon certain conditions. No State shall, without the consent 

of Congress, lay any duties on. 1 10 

Laid by any State, shall be for the use of the Treasury. The net produce of all 

duties on . 1 10 

Shall be subject to the revision and control of Congress. All laws of the States 

laying duties on. 1 10 

Ex post facto law shall be passed. No bill of attainder or. 1 9 

Ex post facto law, or law impairing the obligation of contracts. No State shall pass any 

bill of attainder. 1 10 

Extraordinary occasions. The President may convene both Houses, or either House of 

Congress, on . 2 3 


Cl 


i: 

17 


8 

1 

2 

1 

2 

7 
5 

2 

2 

2 

8 

1 


F. 

Faith and credit in each State shall be given to the acts, records, and judicial proceed¬ 
ings of another State. Full . 4 

Felony, and breach of the peace. Members of Congress shall not be privileged from 

arrest for treason. 1 

Felonies committed on the high seas. Congress shall have power to define and punish 

piracies and . 1 

Fines. Excessive fines shall not be imposed.[Amendments.] 8 

Foreign coin. Congress shall have power to coin money, fix the standard of weights and 

measures, and to regulate the value of. 1 

Foreign nations, among the States, and with the Indian tribes. Congress shall have 

power to regulate commerce with..'^... 1 

Foreign power. No State shall, without the consent of Congress, enter into any compact 

or agreement with any. 1 

Forfeiture, except during the life of the person attainted. Attainder of treason shall not 

work . 3 

Formation of new States. Provisions relating to the. 4 

Form of government. The United States shall guarantee to every State in this Union a 

republican . 4 

And shall protect each of them against invasion; and on application of the legis¬ 
lature, or of the executive (when the legislature can not be convened), against 

domestic violence . 4 

Forts, magazines, arsenals, dockyards, and other needful buildings. Congress shall exer¬ 
cise exclusive authority over all places purchased for the erection of. 1 

Freedom of speech or the press. Congress shall make no law abridging the [Amendments.] 1 

Free State, the right of the people to keep and bear arms shall not be infringed. A well- 

regulated militia being necessary to the security of a .[Amendments.] 2 

Fugitives from crime found in another State shall, on demand, be delivered up to the 

authorities of the State from which they may flee. 4 

Fugitives from service or labor in one State, escaping into another State, shall be deliv¬ 
ered up to the party to whom such service or labor may be due. 4 


1 

6 1 

8 , 10 

8 6 

8 S 

10 8 

3 2 

3 1 

4 

4 

8 17 

2 2 

2 3 


G. 

General welfare, and secure the blessings of liberty, etc. To promote the_[Preamble.] 

General welfare. Congress shall have power to provide for the common defense and 1 

Georgia shall be entitled to three Representatives in the first Congress. 1 

Gold and silver coin a tender in payment of debts. No state shall make anything but... 1 
Good behavior. The judges of the Supreme and inferior courts shall hold their offices 

during .. 3 

Government. The United States shall guarantee to every State in this Union a repub¬ 
lican form of. 4 


And shall protect each of them against invasion, and on application of the legis¬ 
lature, or of the executive (when the legislature can not be convened), against 
domestic violence . 4 

Gland jury. No person shall be held to answer for a capital or otherwise infamous 

crime, unless on the presentment of a.[Amendments.] 5 

Except in cases arising in the land and naval forces, and in the militia when in 

actual service .[Amendments.] 5 


8 

2 

10 

1 

4 

4 


1 

3 

1 





































INDEX TO THE CONSTITUTION OF THE UNITED STATES. 


49 


Art, Sec. Cl. 

Guarantee to every State in this Union a republican form of government. The United 

States shall . 4 4 

And shall protect each of them against invasion; and on application of the legis¬ 
lature, or of the executive (when the legislature can not be convened), against 
domestic violence . 4 4 


H. 


Habeas corpus shall not be suspended unless in cases of rebellion or invasion. The writ 

of . ] 

Heads of departments. Congress may, by law, vest the appointment ot inferior officers in 

the . 2 

On any subject relating to their duties, the President may require the written opin¬ 
ion of the principal officers in each of the executive departments. 2 

High crimes and misdemeanors. The President, Vice-President, and all civil officers shall 

be removed on impeachment for, and conviction of, treason, bribery, or other.. 2 

House of Representatives. Congress shall consist of a Senate and. 1 

Shall be composed of members chosen every second year. 1 

Qualifications of electors for members of the. 1 

No person shall be a member who shall not have attained the age of twenty-five 

years, and been seven years a citizen of the United States. 1 

The executives of the several States shall issue writs of election to fill vacancies in 

the . 1 

Shall choose their Speaker and other officers. 1 

Shall have the sole power of impeachment.- . 1 

Shall be the judge of the elections, returns, and qualifications of its own members. 1 

A majority shall constitute a quorum to do business. 1 

Less than a majority may adjourn from day to day, and compel the attendance of 

absent members . 1 

May determine its own rules of proceedings. 1 

May punish its members for disorderly behavior, and, with the concurrence of two- 

thirds, expel a member. 1 

Shall keep a journal of its proceedings. 1 

Shall not adjourn for more than three days during the session of Congress without 

the consent of the Senate. 1 

Members shall not be questioned for any speech or debate in either House, or in any 

other place . 1 

No person holding any office under the United States shall, while holding such 

office, be a member of the. 1 

No person, while a member of either House, shall be appointed to an office which 

shall have been created, or the emoluments increased, during his membership- 1 

All bills for raising revenue shall originate in the.. 1 

The votes for President and Vice-President shall be counted in the presence of the 

Senate and . [Amendments.] 12 

If no person have a majority of electoral votes, then from the three highest on 
the list the House of Representatives shall immediately, by ballot, choose a 

President . [Amendments.] 12 

They shall vote by States, each State counting one vote.[Amendments.] 12 

A quorum shall consist of a member or members from two-thirds of the States, 
and a majority of all the States shall be necessary to the choice of a President. 

[Amendments.] . 12 

No person having, as a legislative, executive, or judicial officer of the United States, 
or of any State, taken an oath to support the Constitution, and afterwards en¬ 
gaged in insurrection or rebellion against the United States, shall be a member 

of the .[Amendments.].. 14 

But Congress may, by a vote of two-thirds of each House, remove such disability. 

[Amendments.] . 14 


9 2 


2 2 
2 1 


4 

1 

2 1 

2 1 

2 2 

2 4 

2 5 

2 5 

5 1 

5 1 

5 1 

5 2 

5 2 

6 3 

5 4 

6 1 

6 2 

6 2 

7 1 


3 

3 


I. 


Imminent danger as will not admit of delay. No State shall, without the consent of Con¬ 
gress, engage in war, unless actually invaded, or in such. 1 

Immunities. Members of Congress shall, in all cases except treason, felony, and breach 
of the peace, be privileged from arrest during their attendance at the session of 

their respective Houses, and in going and returning from the same. 1 

No soldier shall be quartered in any house, without the consent of the owner, in 

time of peace .[Amendments.] 3 

No person shall be twice put in jeopardy of life or limb for the same offense. 

[Amendments.] . 5 

All persons born or naturalized in the United States, and subject to the jurisdic¬ 
tion thereof, are citizens of the United Slates, and of the State in which they 

reside . [Amendments.] 14 

No State shall make or enforce any law which shall abridge the privileges or 

immunities of citizens of the United States.[Amendments.] 14 

Nor shall any State deprive any person of life, liberty, or property, without due 

process of law . [Amendments.] 14 

Nor deny to any person within its jurisdiction the equal protection of the law. 

[Amendments.] . 14 

Impeachment. The President may grant reprieves and pardons except in cases of. 2 

The House of Representatives shall have the sole power of. 1 

Impeachment for, and conviction of, treason, bribery, and other high crimes and misde¬ 
meanors. The President, Vice-President, and all civil officers shall be removed 
upon . 2 


10 

6 


1 

1 

1 

1 

2 

2 

4 


8 

1 


1 

6 









































50 INDEX TO THE CONSTITUTION OP THE UNITED STATES. 


Impeachments. The Senate shall have the sole power to try all.. 

The Senate shall be on oath, or affirmation, when sitting for the trial of.... 

When the President of the United States is tried, the Chief Justice shall preside.. 
No person shall be convicted without the concurrence of two-thirds of the members 

present .... • • • • •..V 'j 

Judgment shall not extend beyond removal from office, and disqualification to hold 

office .. .. ;.;.‘ ■' 

But the party convicted shall be liable to indictment and punishment according 

to law . 

Importation of slaves prior to 1808 shall not be prohibited by the Congress.. .. 

But a tax or duty of ten dollars for each person may be imposed on such. 

Imports or exports, except what may be absolutely necessary for executing its inspection 
laws. No state shall, without the consent of Congress, lay any imposts or 

duties on . 

Imports or exports laid by any State shall be for the use of the Treasury, The net pro¬ 
duce of all duties on. 

Imports or exports shall be subject to the revision and control of Congress, All laws of 

States laying duties on. 

Imposts and excises. Congress shall have power to lay and collect taxes, duties. 

Shall be uniform throughout the United .States. All taxes, duties. 

Inability of the President, the powers and duties of his office shall devolve on the Vice- 

President, In case of the death, resignation, or. 

Inability of the President or Vice-President, Congress may provide, by law, for the case 

of the removal, death, resignation, or. 

Indian tribes, Congress shall have power to regulate commerce with the. 

Indictment or presentment of a grand jury. No person shall be held to answer for a cap¬ 
ital or infamous crime, unless on.[Amendments.] 

Except in cases arising in the land and naval forces, and in the militia when in 

actual service .[Amendments.] 

Indictment, trial, judgment, and punishment, according to law. The party convicted in 

case of impeachment shall nevertheless be liable and subject to. 

Infamous crime, unless on presentment or indictment of a grand jury. No person shall 

be held to answer for a capital or.[Amendments.] 

Inferior courts. Congress shall have power to constitute tribunals inferior to the Su¬ 
preme Court . 

Inferior courts as Congress may establish. The judicial power of the United States shall 

be vested in one Supreme Court, and such. 

The judges of both the Supreme and inferior courts shall hold their offices during 

good behavior . 

Their compensation shall not be diminished during their continuance in office. 

Inferior officers in the courts of law, in the President alone, or in the heads of depart¬ 
ments. Congress, if they think proper, may, by law, vest the appointment of.. 
Inhabitant of the State for which he shall be chosen. No person shall be a Senator Who 
shall not have attained the age of thirty years, been nine years a citizen of the 
United States, and who shall not, when elected, be an. 


Insurrection or rebellion against the United States. No person shall be a Senator or Rep¬ 
resentative in Congress, or presidential elector, or hold any office, civil or mil¬ 
itary, under the United States, or any State, who, having taken an oath as a 
legislative, executive, or judicial officer of the United States, or of a State, after- 

‘wards engaged in .[Amendments.] 

But Congress may, by a vole of two-thirds of each House, remove such disabili¬ 
ties .[Amendments.] 

Insurrection or rebellion against the United States. Debts declared illegal and void which 

were contracted in aid of.[Amendments.] 

Insurrections and repel invasions. Congress shall provide for calling forth the militia 

to suppress . 

Invasion. No state shall, without the consent of Congress, engage in war unless actu¬ 
ally invaded, or in such imminent danger as will not admit of delay. 

The writ of habeas corpus shall not be suspended unless in case of rebellion or. 

Invasion and domestic violence. The United States shall protect each State against. 

Invasions. Congress shall provide for calling forth the militia to suppress insurrections 

and repel . 

Inventors and authors in their inventions and writings. Congress may pass laws to secure, 

for limited times, exclusive rights to. 

Involuntary servitude, except as a punishment for crime, abolished in the United States. 

Slavery and .[Amendments.] 


Art. 

1 

1 

1 

1 

1 

1 

1 

1 

1 

1 

1 

1 

1 

2 

2 

1 

5 

5 

1 

5 

1 

3 

3 

3 

2 

1 


14 

14 

14 

1 

1 

1 

4 

1 

1 

13 


Sec. Cl. 

3 « 

3 6 

3 8 

3 8 

8 7 

3 7 

0 1 

9 1 

10 2 

10 2 

10 2 

8 1 

8 1 

1 6 

1 6 

8 3 

3 7 

8 9 

1 

1 

1 

2 2 

8 3 

8 

3 

4 

8 15 

10 8 

9 2 

4 

8 16 

8 8 

1 


J. 


Jeopardy of life and limb for the same offense. No person shall be twice put in. 

[Amendments.] . 6 

Journal of its proceedings. Each House shall keep a. 1 5 8 

Judges in every State shall be bound by the Constitution the laws and treaties of the 

United States, which shall be the supreme law of the land. 6 .. 2 

Judges of the Supreme and inferior courts shall hold their offices during good behavior. 3 1 

Their compensation shall not be diminished during their continuance in office. 3 1 

Judgment in cases of impeachment shall not extend further than to removal from office, 
and disqualification to hold any office of honor, trust, or profit under the 

United States .. 1 3 7 

But the party convicted shall, nevertheless, be liable and subject to indictment, 

trial, judgment, and punishment according to law. 18 7 













































INDEX TO THE CONSTITUTION OP THE UNITED STATES. 


51 


Art. Sec. Cl. 

Judicial power of the United States. Congress shall have power to constitute tribunals 

inferior to the Supreme Court. 18 9 

The judicial power of the United States shall be vested in one Supreme Court, and 

in such inferior courts as Congress may from time to time ordain and establish.. 3 1 

The judges of the Supreme and inferior courts shall hold their offices during good 

behavior . 3 1 

Their compensation shall not be diminished during their continuance in office. 3 1 

It shall extend to all cases in law and equity arising under the Constitution, laws, 

and treaties of the United States. 3 2 1 

To all cases affecting ambassadors, or public ministers, and consuls. 3 2 1 

To all cases of admiralty and maritime jurisdiction. 3 2 1 

To controversies to which the United States shall be a party. 3 2 1 

To controversies between two or more States. 3 2 1 

To controversies between a State and citizens of another State. 3 2 1 

To controversies between citizens of different States. 3 2 1 

To citizens of the same State claiming lands under grants of different States. 3 2 1 

To controversies between a State or its citizens and foreign states, citizens, or sub¬ 
jects . 3 2 1 

In all cases affecting ambassadors, other public ministers and consuls, and those 
in which a State shall be a party, the Supreme Court shall have original juris¬ 
diction . 3 2 8 

In all other cases before mentioned, it shall have appellate jurisdiction, both as to 
law and fact, with such exceptions and under such regulations as Congress shall 

make . 3 2 2 

The trial of all crimes, except in cases of impeachment, shall be by jury. 3 2 3 

The trial shall be held in the State where the crimes shall have been committed.... 3 2 3 

But when not committed in a State, the trial shall be at such place or places as 

Congress may, by law, have directed. 3 2 3 

The judicial power of the United States shall not be held to extend to any suit in 
law or equity commenced or prosecuted against one of the United States by 
citizens of another State, or by citizens or subjects of any foreign state. 

[Amendments.] . 11 

Judicial proceedings of every other State. Full faith and credit shall be given in each 

State to the acts, records, and. 4 1 

Congress shall prescribe the manner of proving such acts, records, and proceedings. 4 1 

Judicial and executive officers of the United States, and of the several States, shall be 

bound by an oath to support the Constitution. 6 .. 3 

Judiciary. The Supreme Court shall have original jurisdiction in all cases affecting 
ambassadors, other public ministers and consuls, and those in which a State 

may be a party ... .. 3 2 2 

The Supreme Court shall have appellate jurisdiction both as to law and fact, with 

such exceptions and regulations as Congress may make. 3 2 2 

Junction of two or more States, or parts of States, without the consent of the legislatures 

and of Congress. No State shall be formed by the. 4 3 1 

Jurisdiction of another State. No new State shall, without the consent of Congress, be 

formed or erected within the. 4 3 1 

Jurisdiction, both as to law and fact, with such exceptions and under such regulations 

as Congress may make. The Supreme Court shall have appellate. 3 2 2 

Jurisdiction. In all cases affecting ambassadors and other public ministers and consuls, 

and in cases where a State is a party, the Supreme Court shall have original.... 3 2 1 

Jury. The trial of all crimes, except in cases of impeachment, shall be by. 3 2 3 

In all criminal prosecutions the accused shall have a speedy and public trial by. 

[Amendments.] . . 6 

All suits at common law, where the value exceeds twenty dollars, shall be tried 

by .[Amendments.] 7 

Where a fact has been tried by a jury, it shall not be re-examined except by the 

rules of the common law.[Amendments.] 7 

Just compensation. Private property shall not be taken for public use without [Amend¬ 
ments.] . 5 

Justice, insure domestic tranquillity, et«. To establish.[Preamble.] 

L. 

I.abor, in one State, escaping into another State, shall be delivered up to the party to 

whom such service or labor may be due. Fugitives from service or. 4 2 3 

Land and naval forces. Congress shall make rules for the government and regulation of 

the . I 8 14 

Law and fact, with exceptions, and under regulations to be made by Congress. The 

Supreme Court shall have appellate jurisdiction as to. 3 2 2 

Law of the land. The Constitution, the laws made in pursuance thereof, and treaties 

of the United States, shall be the supreme. 6 .. 2 

The judges in every State shall be bound thereby. 6 .. 2 

Law of nations. Congress shall provide for punishing offenses against the. 1 8 10 

Laws. Congress shall provide for calling forth the militia to suppress insurrection, repel 

invasion, and to execute the. 1 8 15 

Laws and treaties of the United States. The judicial power shall extend to all cases in 

law and equity arising under the Constitution, or the. 3 2 1 

Laws necessary to carry into execution the powers vested in the government, or ir. any 

department or officer of the United States. Congress shall make all. 1 8 18 

Legal tender in payment of debts. No state shall make anything but gold and silver coin a 1 10 1 










































52 INDEX TO THE CONSTITUTION OP THE UNITED STATES. 


Legislation in all cases over such district as may become the seat of government. Con¬ 
gress shall exercise exclusive.;... ;•••• 

Over all places purchased for the erection of forts, magazines, arsenals, dock¬ 
yards, and other needful buildings. Congress shall exercise exclusive. 

Legislation. Congress shall have power to make all laws necessary and proper for car¬ 
rying into execution all the powers vested by the Constitution in the Govern¬ 
ment of the United States, or in any department or officer thereof. 

Congress shall have power to enforce Article XIII, prohibiting slavery, by appro¬ 
priate ..[Amendments.] 

Congress shall have power to enforce the Fourteenth Amendment by appropriate. 

[Amendments.] .. • • • 

Congress shall have power to enforce the Fifteenth Amendment by appropriate. 

[Amendments.] .-. 

Legislative powers herein granted shall be vested in Congress. All. 

Legislature, or the Executive (when the legislature cannot be convened). The United 
States shall protect each State against invasion and domestic violence, on the 

application of the . 

Legislatures of two-thirds of the States, Congress shall call a convention for proposing 

amendments to the Constitution. On the application of the. 

Letters of marque and reprisal. Congress shall have power to grant. 

No State shall grant. 

Liberty to ourselves and our posterity, etc. To secure the blessings of.[Preamble.] 

Life, liberty, and property without due process of law. No person shall be compelled, in 
any criminal case, to be a witness against himself, nor be deprived of [Amend¬ 
ments.] .;•... 

No State shall abridge the privileges or immunities of citizens of the United States, 
nor deprive any person of.[Amendments.] 

Life or limb for the same offense. No person shall be twice put in jeopardy of [Amend¬ 
ments.] . 

Loss or emancipation of any slave shall be held illegal and void. Claims for the [Amend¬ 
ments.] . 


1 

1 

1 

13 

14 

15 
1 

4 

5 
1 
1 


5 

14 

5 

14 


8 17 

8 17 


8 18 
2 


6 

2 

1 


4 


8 11 
10 1 


1 


4 


M. 


Magazines, arsenals, dockyards, and other needful buildings. Congress shall have exclu¬ 
sive authority over all places purchased for the erection of. 1 8 

Majority of each House shall constitute a quorum to do business. A. 1 5 

But a smaller number may adjourn from day to day, and may be authorizedxto 

compel the attendance of absent members. 1 5 

Majority of all the States shall be necessary to a choice. When the choice of a President 
shall devolve on the House of Representatives, a- quorum shall consist of a mem¬ 
ber or members from two-thirds of the States; but a.[Amendments.] 12 

When the choice of a Vice-President shall devolve on the Senate, a quorum shall 
consist of two-thirds of the whole number of Senators, and a majority of the 
whole number shall be necessary to a choice.[Amendments.] 12 

Maritime jurisdiction. The judicial power shall extend to all cases of admiralty and. 3 2 

Marque and reprisal. Congress shall have power to grant letters of. 1 8 

No state shall grant any letters of. 1 10 

Maryland entitled to six Representatives in the first Congress. 1 2 

Massachusetts entitled to eight Representatives in the first Congress. 1 2 

Measures. Congress shall fix the standard of weights and. 1 8 

Meeting of Congress. The Congress shall assemble at least once in every year, and such 
meeting shall be on the first Monday in December, unless they shall, by law, 
appoint a different day . 1 4 

Members of Congress, and of State legislatures, shall be bound by oath or affirmation to 

support the Constitution . 6 

Militia to expcute the laws, suppress insurrections, and repel invasions. Congress shall 

provide for calling forth the. 1 8 

Congress shall provide for organizing, arming, and disciplining the. 1 8 

Congress shall provide for governing such part of them as may be employed by 

the United States ..•. 1 8 

Reserving to the States the appointment of the officers, and the right to train the 

militia according to the discipline prescribed by Congress. 1 8 

A well-regulated militia being necessary to the security of a free State the right of 

the people to keep and bear arms shall not be infringed.[Amendments.] 2 

Misdemeanors. The President, Vice-President, and all civil officers shall be removed on 

impeachment for, and conviction of, treason, bribery, or other high crimes and.. 2 4 

Money on the credit of the United States. Congress shall have power to borrow. 1 8 

Regulate the value thereof, and of foreign coin. Congress shall have power to coin. 1 8 

Shall be drawn from the Treasury but in consequence of appropriations made by 

law. No . 1 9 

Shall be published from time to time. A regular statement and account of receipts 

and expenditures of public. 1 9 

For raising and supporting armies. No appropriation of money shall be for a 

longer term than two years. 1 g 


17 

1 

1 


1 

11 

1 

3 

3 

6 


2 

3 

15 

16 

16 

16 


2 

5 

7 

7 

12 










































INDEX TO THE CONSTITUTION OF THE UNITED STATES. 


53 


N. 


Natiof^. Congress shall have power to regulate commerce with foreign. 1 8 

Congress shall provide for punishing offenses against the law of. 1 8 

Natural born citizen, or a citizen at the adoption of the Constitution, shall be eligible to 

the office of President. No person except a. 2 1 

Naturalization. Congress shall have power to establish a uniform rule of. 1 8 

Naturalized in the United States, and subject to their jurisdiction, shall be citizens of 
the United States, and of the States in which they reside. All persons born, or. 
[Amendments.] . 14 i 

Naval forces. Congress shall make rules and regulations for the government and regu¬ 
lation of the land and. 1 8 

Navy. Congress shall have power to provide and maintain a..’. 1 8 

New Hampshire entitled to three Representatives in the first Congress. 1 2 

New Jersey entitled to four Representatives in the first Congress. 1 2 

New States may be admitted by Congress into this Union. 4 3 

But no new State shall be formed within the jurisdiction of another State with¬ 
out the consent of Congress. 4 3 

Nor shall any State be formed by the junction of two or more States, or parts of 

States, without the consent of the legislatures and of Congress. 4 3 

New York entitled to six Representatives in the first Congress. 1 2 

Nobility shall be granted by the United States. No title of. 1 9 

No state shall grant any title of. 1 lO 

Nominations for oihce by the President. The President shall nominate, and, by and with 
the advice and consent of the Senate, shall appoint ambassadors and other 

public officers . 2 2 

He may grant commissions to fill vacancies that happen in the recess of the Sen¬ 
ate, which shall expire at the end of their next session. 2 2 

North Carolina entitled to five Representatives in the first Congress. 1 2 

Number of electors for President and Vice-President in each State shall be equal to the 
nunffier of Senators and Representatives to which such State may be entitled 
in Congress . 2 1 


Cl. 

3 

10 


4 

4 


14 

13 

3 

3 

1 

1 

1 

3 

8 

1 

2 

3 

3 


2 


o. 


Oath of office of the President of the United States. Form of the. 2 1 

Oath or affirmation. No warrants shall be issued but upon probable cause supported by. 

[Amendments.] . 4 

Oath or affirmation to support the Constitution. Senators and Representatives, members 
of State legislatures, executive and judicial officers of the United States and of 

the several States, shall be bound by. 6 

But no religious test shall ever be required as a qualification for office. 6 

The Senators, when sitting to try impeachment, shall be on. 1 3 

Objections. If he shall not approve it, the President shall return the bill to the House 

in which it originated with his. 1 7 

Obligation of contracts. No State shall pass any ex post facto law, or law impairing the.. 1 10 

Obligations incurred in aid of insurrection or rebellion against the United States to be 

held illegal and void. All debts or.[Amendments.] 14 4 

Offense. No person shall be twice put in jeopardy of life or limb for the same [Amend¬ 
ments.] . 5 

Offenses against the law of nations. Congress shall provide for punishing. 1 8 

Against the United States, except in cases of impeachment. The President may 

grant reprieves or pardons for. 2 2 

Office under the United States. No person shall be a member of either House while 

holding any civil . 1 6 

' No Senator or Representative shall be appointed to any office under the United 
States which shall have been created, or its emoluments increased, during the 

term for which he is elected. 1 6 

Or title of any kind from any king, prince, or foreign state, without the consent 
of Congress. No person holding any office under the United States, shall accept 

of any present, emolument . 1 9 

Office of President, in case of his removal, death, resignation, or inability, shall devolve 

on the Vice-President. The powers and duties of the. 2 1 

During the term of four years. The President and Vice-President shall hold. 2 1 

Of trust or profit under the United States shall be an elector for President and 

Vice-Pre.sident. No person holding an. 2 1 

Civil or military under the United States, or any State, who had taken an oath as 
a legislative, executive, or judicial officer of the United States, or of any State, 
and afterward engaged in insurrection or rebellion. No person shall be a Sena¬ 
tor, Representative, or Presidential elector, or hold any.[Amendments.] 14 3 

Officers in the President alone, in the courts of law, or in the heads of departments. 

Congress may vest the appointment of inferior. . 2 2 

Of the United States shall be removed on impeachment for, and conviction of, trea¬ 
son, bribery, or other high crimes and misdemeanors. The President, Vice- 

President, and all civil . 2 4 

The House of Representatives shall choose their Speaker and other. 1 2 

The Senate, in the absence of the Vice-President, shall choose a President pro tem¬ 
pore, and also their other. 1 3 _ 

Offices becoming vacant in the recess of the Senate may be filled by the President, the 

commissions to expire at the end of the next session. 2 2 


7 


3 

3 

6 

2 

1 


10 

1 

2 

2 

8 

S 

1 

2 


2 


6 

5 

t 













































54 INDEX TO THE CONSTITUTION OP THE UNITED STATES. 


Art. 

One-fifth of the members present, be entered on the journal of each House. The j^eas 


and nays shall, at the desire of. 1 

Opinion of the principal officers in each of the Executive Departments on any subject re¬ 
lating to their duties. The President may require the written. 2 

Order resolution, or vote (except on a question of adjournment) requiring the concur¬ 
rence of the two Houses, shall be presented to the President. Every. 1 

Original jurisdiction, in all cases affecting ambassadors, other public ministers, and con¬ 
suls, and in which a State may be a party. The Supreme Court shall have.... 3 
Overt act, or on confession in open court. Conviction of treason shall be on the testi¬ 
mony of two witnesses to the. 3 


Sec. 

5 

2 

7 

2 

3 


Cl. 

S 

1 

8 

2 

1 


P. 


Pardons, except in cases of impeachment. The President may grant reprieves and. 

Patent rights to inventors. Congress may pass laws for securing. 

Peace.' Members of Congress shall not be privileged from arrest for treason, felony, and 

breach of the ... 

No State shall, without the consent of Congress, keep troops or ships of war in 

time of . 

No soldier shall be quartered in any house, without the consent of the owner, in 

time of .[Amendments.] 

Pensions and bounties shall not be questioned. The validity of the public debt incurred 
in suppressing insurrection and rebellion against the United States, including 

the debt for .[Amendments.] 

Pennsylvania entitled to eight Representatives in the first Congress. 

People, peaceably to assemble and petition for redress of grievances, shall not be 

abridged by Congress. The right of the.[Amendments.] 

To keep and bear arms shall not be infringed. A well-regulated militia being 

necessary to the security of a free State, the right of the.[Amendments.] 

To be secure in their persons, houses, papers, and effects, against unreasonable 
searches and seizures shall not be violated. The right of the....[Amendments.] 
People. The enumeration of certain rights in the Constitution shall not be held to deny 

or disparage others retained by the.[Amendments.] 

Powers not delegated to the United States, nor prohibited to the States, are 

reserved to the States or to the.[Amendments.] 

Perfect Union, etc. To establish a more.[Preamble.] 

Persons, houses, papers, and effects against unreasonable searches and seizures. The 
people shall be secured in their.[Amendments.] 

Persons, as any State may think proper to admit, shall not be prohibited prior to 1808. 

The migration or importation of such. : . 

But a tax or duty of ten dollars shall be imposed on the importation of each of 
such . 

Petition for the redress of grievances. Congress shall make no law abridging the right 

of the people peaceably to assemble and to.[Amendments.] 

Piracies and felonies committed on the high seas. Congress shall define and punish. 

Place than that in which the two Houses shall be sitting. Neither house, during the 
session, shall, without the consent of the other, adjourn for more than three 

days, nor to any other. 

Places of choosing Senators. Congress may, by law, make or alter regulations for the 
election of Senators and Representatives, except as to the... 

Ports of one State over those of another. Preference shall not be given by any regula¬ 
tion of commerce or revenue to the. 

Vessels clearing from the ports of one State shall not pay duties in another. 

Post-offices and post roads. Congress shall establish. 

Powers herein granted shall be vested in Congress. All legislative. 

Powers vested by the Constitution in the Government or in any department or officer of 
the_ United States. Congress shall make all laws necessary to carry into exe¬ 
cution the . 

Powers and duties of the office shall devolve on the Vice-President, on the removal, 

death, resignation, or inability of the President. The. 

Powers not delegated to the United States, nor prohibited to the States, are reserved to 

the States and to the people.[Amendments.] 

The enumeration of certain rights in this Constitution shall not be held to deny 

or disparage others retained by the people.[Amendments.] 

Preference, by any regulation of commerce or revenue, shall not be given to the ports of 
one State over those of another. 

Prejudice any claims of the United States, or of any particular State, in the territory or 

property of the United States. Nothing in this Constitution shall. 

Present, emolument, office, or title of any kind whatever, from any king, prince, or 
foreign State. No person holding any office under the United States shall, with¬ 
out the consent of Congress, accept any. 

Presentment or indictment of a grand jury, except in cases arising in the land or naval 
forces, or in the militia when in actual service. No person shall be held to 
answer for a capital or otherwise infamous crime unless on a [Amendments.] 


2 

1 

1 

1 

3 


14 

1 

1 

2 

4 

9 

10 


4 

1 

1 

1 

1 

1 

1 

1 

1 

1 

1 


1 

2 

10 

9 

1 

4 

1 

5 


2 1 

8 8 

6 1 
10 8 


4 

2 8 


9 1 

9 1 


8 10 

6 4 

4 1 

9 6 

9 6 

8 7 

1 

8 18 

1 6 


9 6 

3 2 

9 8 







































INDEX TO THE CONSTITUTION OP THE UNITED STATES. 


President of the United States. The Senate shall choose a President pro tempore when 

tl^ Vice-President shall exercise the office of. 

The Chief Justice shall preside upon the trial of the. 

cu 11 sign all bills passed by Congress before they shall become laws., 

bhall return to the House in which it originated, with his objections, any bill which 
which he shall not approve... 


If i^t returned within ten days (Sundays excepted), it shall become a law, unless 

Congress shall adjourn before the expiration of that time. 

Every order, resolution, or vote which requires the concurrence of both Houses, 

except on a question of adjournment, shall be presented to the. 

If disapproved by him, shall be returned and proceeded on as in the case of a bill . 
The executive power shall be vested in a. 

He shall hold his office during the term of four years. 

In case of the removal of the President from office, or of his death resignation, 
or inability to discharge the duties of his office, the Vice-President shall per¬ 
form the duties of .. . 

Congress may decide, by law, in the case of the removal, death, resignation, or 

inability of the President, what officer shall act as... 

The President shall receive a compensation which shall not be increased nor 
diminished during his term, nor shall he receive any other emolument from 

the United States . 

Before he enters upon the execution of his office he shall’ take an *oath of office.'.*.'.'. 
ShaU be commander-in-chief of the Army and Navy, and of the militia of the 

States when called into actual service. 

He may require the opinion, in writing, of the principal officer in'each of’the ’Exe'c- 
utive Departments . 


He may grant reprieves or pardons for offenses, except in cases of impeachment.... 

He may make treaties by and with the advice and consent of the Senate two- 
thirds of the Senators present concurring.. 

He may appoint, by and with the advice and consent of Vhe 'Senate,* ambassador’s, 
other public ministers and consuls, judges of the Supreme Court, and all other 
officers whose appointments may be authorized by law and not herein pro¬ 
vided for . 


Congress may vest the appointment of inferior officers in the... 

He may fill up all vacancies that may happen in the recess of the Senate by com¬ 
missions which shall expire at the end of their next session. 

He shall give information to Congress of the state of the Union, and recommend 

measures . 

On extraordinary occasions he may convene both Houses or either House of 

Congress . 

In case of disagreement between the two Houses as to the time of adjournment, 

he may adjourn them to such time as he may think proper. 

He shall receive ambassadors and other public ministers. 

He shall take care that the laws be faithfully executed. 

He shall commission all the officers of the United States. 

On impeachment for, and conviction of, treason, bribery, or other high crimes 

and misdemeanors, shall be removed from office. The. 

No person except a natural-bom citizen, or a citizen of the United States at the 

adoption of the Constitution, shall be eligible to the office of. 

No person who shall not have attained the age of thirty-five years, and been 
fourteen years a citizen of the United States, shall be eligible to the office of.. 


Art. 

1 

1 

1 

1 

1 

1 

1 

2 

2 


2 

2 


2 

2 

2 

2 

2 

2 


2 

2 

2 

2 

2 

2 

2 

2 

2 

2 

2 

2 


President and Vice-President. Manner of choosing. Each State, by its legislature, shall 
appoint a number of electors equal to the whole number of Senators and Rep¬ 
resentatives to which the State may be entitled in the Congress. 2 

No Senator or Representative, or person holding an office of trust or profit under 

the United States, shall be an elector. 2 

Congress may determine the time of choosing the electors and the day on which 
they shall give their votes, which day shall be the same throughout the United 

States . 2 

> The electors shall meet in their respective States and vote, by ballot, for President 
and Vice-President, one of whom, at least, shall not be an inhabitant of the 

same State with themselve.'; .[Amendments.] 12 

They shall name in distinct ballots the person voted for as President and the per¬ 
son voted for as Vice-President .[Amendments.] 12 

Thev shall make distinct lists of the persons voted for as President and as Vice- 
President, which they shall sign and certify and transmit sealed to the 

President of the Senate at the seat of government.[Amendments.] 12 

The President of the Senate shall, in the presence of the Senate and House of 
Representatives, open all the certificates, and the votes shall then be counted. 

[Amendments.] . 12 

The person having the greatest number of votes shall be the President, if such 
number be a majority of the whole number of electors appointed. [Amend¬ 
ments.] .i. 12 

If no person have such majority, then from the persons having the highest num¬ 
bers, not exceeding three, on the list.of those voted for as President, the House 
of Representatives shall choose immediately, by ballot, the President. [Amend¬ 
ments.] . 12 

In choosing the President, the votes shall be taken by States, the representation 

from each State having one vote .[Amendments.] 12 

A quorum for this purpose shall consist of a member or members from two-thirds 
of the States, and a majority of all the States shall be necessary to a choice. 

[Amendments.] . 12 

But if no choice shall be made before the 4th of March next, following, then the 
Vice-President shall act as President, as in the case of the death or disability 
of the President .[Amendments.] 12 


Sec. 

3 

3 

7 

7 

7 

7 

7 

1 

1 

1 

1 

1 

1 

2 

2 

2 

2 

2 

2 

2 

3 

3 

3 

3 

3 

3 

4 
1 
1 

1 

1 

1 














































56 INDEX TO THE CONSTITUTION OP THE UNITED STATES. 


President of the Senate, but shall have no vote unless the Senate be equally divided. The 
Vice-President shall be . 

President pro tempore. In the absence of the Vice-President, the Senate shall choose a.. 
When the Vice-President shall exercise the office of President of the United States, 
the Senate shall choose a. 

Press. Congress shall pass no law abridging the freedom of speech or of the [Amend¬ 
ments.] . 

Previous condition of servitude. The right of citizens of the United States to vote shall 
not be denied or abridged by the United States, or by any State, on account of 
race, color, or .[Amendments.] 

Private property shall not be taken for public use without just compensation. [Amend¬ 
ments.] . 

Privilege. Senators and Representatives shall, in all cases except treason, felony, and 
breach of the peace, be privileged from arrest during their attendance at the 
session of their respective Houses, and in going to and returning from the 

same . 

They shall not be questioned for any speech or debate in either House in any 
other place . 

Privileges and immunities of citizens of the United States. The citizens of each State 
shall be entitled to all the privileges and immunities of the citizens of the sev¬ 
eral States .. 

No soldier shall be quartered in any house without the consent of the owner in 

time of peace .[Amendments.] 

No person shall be twice put in jeopardy of life and limb for the same offense. 

[Amendments.] . 

All persons born or naturalized in the United States, and subject to the jurisdiction 
thereof, are citizens of the United States, and of the State in which they 

reside .[Amendments.] 

No State shall make or enforce any law which shall abridge the privileges or im¬ 
munities of citizens of the United States.[Amendments.] 

No State shall deprive any person of life, liberty, or property, without due process 

of law . [Amendments.] 

Nor deny any person within its jurisdiction the equal protection of its laws. 

[Amendments.] .<. 

. Prises captured on land and water. Congress shall make rules concerning. 

Probable cause. The right of the people to be secure in their persons, houses, papers, 
and effects, against unreasonable searches and seizures, shall not be violated. 
And no warrant shall issue for such but upon.[Amendments.] 

Process of law. No person shall be compelled, in any criminal case, to be a witness 
against himself, nor be deprived of life, liberty, or property, without due. 

[Amendments.] .. 

• No State shall deprive any person of life, liberty, or property, without^ due. 
[Amendments.] . 

Process for obtaining witnesses in his favor. In all criminal prosecutions the accused 
shall have .[Amendments.] 

Progress of science and useful arts. Congress shall have power to promote the. 

Property of the United States. Congress may dispose of and make all needful rules and 
regulations respecting the territory or.;. 

Property, without due process of law. No person shall be compelled, in any criminal 
case, to be a witness against himself;- nor shall he be deprived of his life, lib¬ 
erty, or .[Amendments.] 

No State shall abridge the privileges or immunities of citizens of the United 
States; nor deprive any person of his life, liberty, or.[Amendments.] 

Prosecutions. The accused shall have a speedy and public trial in all criminal. 

[Amendments.] . 

He shall be tried by a jury in the State or district where the crime was committed. 


[Amendments.] ... 

He shall be informed of the nature and cause of the accusation.[Amendments.] 

He shall be confronted with the witnesses against him.[Amendments.] 

He shall have compulsory process for obtaining witnesses...,.[Amendments.] 

He shall have counsel for his defense.[Amendments.] 

Protection of the laws. No State shall deny to any person within its jurisdiction the 
equal .[Amendments.] 

Public debt of the United States incurred in suppressing insurrection or rebellion shall 
not be questioned. The validity of the.[Amendments.] 


Public safety may require it. The writ of habeas corpus shall not be suspended, unless 
when in cases of rebellion or invasion the. 

Public trial by jury. In all criminal prosecutions the accused shall have a speedy and. 

[Amendments.] . 

Public use. Private property shall not be taken for, without just compensation. 

[Amendments.] . 

Punishment according to law. Judgment in cases of impeachment shall not extend 
further than to removal from, and disqualification for, office; but the party 
convicted shall nevertheless be liable and subject to indictment, trial, judg¬ 
ment, and .. 

Punishments inflicted. Excessive bail shall not be required, nor excessive fines imposed, 
nor cruel and unusual .[Amendments.]’ 


Art. 

1 

1 

1 

1 

16 

6 


1 

1 

4 

3 

6 

14 

14 

14 

14 

1 


4 


5 
14 

6 
1 

4 

5 

14 

6 

6 

6 

6 

6 

6 

14 

14 

1 

6 

5 


1 

8 


Sec. 

3 

3 

3 


1 


6 

6 

2 


1 

1 

1 

1 

8 


1 


8 

3 


1 


1 

4 

9 


3 


Cl. 

4 

5 

5 


1 

1 

1 


11 


8 

2 


i 









































INDEX TO THE CONSTITUTION OP THE UNITED STATES.' 57 


Q- 


Qualification for Office. No religious test shall ever be required as a. 

Qualifications of electors of members of the House of Representatives shall be the same 

as electors for the most numerous branch of the State legislature. 

Qualifications of members of the House of Representatives. They shall be twenty-five 
years of age, seven years a citizen of the United States, and an inhabitant of 

the State in which chosen . 

Of Senators. They shall be thirty years of age, nine years a citizen of the United 

States, and an inhabitant of the State in which chosen. 

Of its own members. Each House shall be the judge of the election, returns, and. 
Of the President. No person except a natural-born citizen, or a citizen of the 
United States at the time of the adoption of the Constitution, shall be eligible 

to the office of President. 

Neither shall any person be eligible to the office of President who shall not have 
attained the age of thirty-five years and been fourteen years a resident within 
the United States . 


Qualification, etc. Of the Vice-President. No person constitutionally ineligible to the 

office of President shall be eligible to that of Vice-President.[Amendments.] 

Quartered in any house without the consent of the owner in time of peace. No soldier 
shall be .[Amendments.] 


Quorum to do business. A majority of each House shall constitute a. 

But a smaller number than a quorum may adjourn from day to day, and may be 

authorized to compel the attendance of absent members. 

Of the House of Representatives for choosing a President shall consist of a member 
or members from two-thirds of the States, and a majority of all the States shall 

be" necessary to a choice.[Amendments.] 

Quorum to elect a Vice-President by the Senate. Two-thirds of the whole number of 

Senators shall be a.[Amendments.] 

A majority of the whole number shall be necessary to a choice-[Amendments.] 


Art. Sec. Cl. 

6 .. 3 

1 2 I 

12 2 

13 3 

1 6 1 

2 14 

2 14 
12 

3 

15 1 

16 1 

12 

12 

12 


R. 


Race, color, or previous condition of servitude. The right of citizens of the United 
States to vote shall not be denied or abridged by the United States, or by any 

State, on account of .[Amendments.] 

Ratification of amendments to the Constitution shall be by the Legislatures of three- 
fourths of the several States, or by conventions in three-fourths of the States, 

accordingly as Congress may propose. 

Ratification of the conventions of nine States shall be sufficient to establish the Consti¬ 
tution between the States so ratifying the same. 

Ratio of representation until the first enumeration under the Constitution shall be made 

not to exceed one for every thirty thousand. 

Ratw of representation shall be apportioned among the several States according to 
their respective numbers, counting the whole number of persons in each State, 

excluding Indians not taxed.[Amendments.] 

But when the right to vote for Presidential electors or members of Congress, or 
the legislative, executive, and judicial officers of the State, except for engaging 
in rebellion or other crime, shall be denied or abridged by a State, the basis of 
representation shall be reduced therein in the proportion of such denial or 

abridgement of the right to vote..[Amendments.] 

Rebellion against the United States. Persons who, while holding certain Federal and 
State offices, took an. oath to support the Constitution, afterward engaged in 
insurrection or rebellion, disabled from holding office under the United States. 

[Amendments.] . 

’ But Congress mav, by a vote of two-thirds of each House, remove such disability. 

[Amendments.] .F 

Debts incurred for pensions and bounties for services in suppressing the rebellion 

shall not be questioned .[Amendments.] 

All debts and obligations incurred in aid of the rebellion, and all claims for the 
loss or emancipation of slaves, declared and held to be illegal and void. 

[Amendments.] . 

Rebellion or invasion. The writ of habeas corpus shall not be suspended except when the 

public safety may require it in cases of. 

Receipts and expenditures of all public money shall be published from time to time. 

A regular statement of . 

Recess of the Senate. The President may grant commissions, which shall expire at the 

end of the next session, to fill vacancies that may happen during the. 

Reconsideration of a bill returned by the President with his objections. Proceedings to 

be had upon the. 

Records, and judicial proceedings of every other State. Full faith and credit shall be 

given in each State to the acts..... 

Congress shall prescribe the manner of proving such acts, records, and proceedings. 

Redress of grie^’ances. Congress shall make no law abridging the right of the people 

peaceably to assemble and to petition for the.[Amendments.] 

Regulations, except as to the places of choosing Senators. The time, places, and manner 
of holding elections for Senators and Representatives shall be prescribed by the 
legislatures of the States, but Congress may at any time, by law, make or alter 
such . 


15 

6 

7 

1 

14 


14 


14 

14 

14 

14 


1 

2 

1 

4 

4 

1 


1 


1 


2 

2 


2 


3 
8 

4 

4 

9 

9 

2 

r 

1 

1 


4 


3 


2 

7 

3 

t 


1 
































58 INDEX TO THE CONSTITUTION OF THE UNITED STATES. 


Art. Sec. Cl. 

Regulations of commerce or revenue. Preference to the ports of one State over those of 

another shall not be given by any. 1 9 6 

Religion or prohibiting the free exercise thereof. Congress shall make no law respecting 

the establishment of .[Amendments.] 1 

Religious test shall ever be required as a qualification for any office or public trust under 

the United States. No. 6 .. 8 

Removal of the President from office, the same shall devolve on the Vice-President. In 

case of the . 2 1 6 

Representation. No State, without its consent, shall be deprived of its equal suffrage in 

the Senate . 6 

Representation and direct taxation, how apportioned among the several States. [This 

provision is changed by the Fourteenth Amendment, section 2. 12 3 

Representation until the first enumeration under the Constitution not to exceed one for 

every thirty thousand. The ratio of. 12 3 

R^resentation in any State. The executive thereof shall issue writs of election to fill 

vacancies in the . 1 2 4 

Representation among the several States shall be according to their respective numbers, 
counting the whole number of persons in each State, excluding Indians not 


But where the right to vote in certain Federal and State elections is abridged for 
any cause other than rebellion or other crime, the basis of representation shall 

be reduced .[Amendments.] 14 2 

Representatives. Congress shall consist of a Senate and House of. 1 1 

Qualification of electors of members of the House of. 1 2 1 

No person shall be a Representative who shall not have attained the age of twenty- 
five years, been seven years a citizen of the United States, and an inhabitant 

of the State in which he shall be chosen. 12 2 

And direct taxes, how apportioned among the several States. [Amended by Four¬ 
teenth Amendment, section 2]. 1 2 3 

Shall choose their Speaker and other officers. The House of. 1 2 i 

Shall have the sole power of impeachment. The House of. 1 2 S 

Executives of the States shall issue writs of election to fill vacancies in the House 

of . 1 2 4 

The times, places, and manner of choosing Representatives shall be prescribed by the 

legislatures of the States. 1 4 1 

But Congress may, at any time, by law, make or alter such regulations, except as to 

the places of choosing Senators . 1 4 1 

And Senators shall receive a compensation, to be ascertained by law. 16 1 

Shall, in all cases, except treason, felony, and breach of the peace, be privileged 
from arrest during the attendance at the session of the House, and in going to 

and returning from the same. 16 1 

Shall not be questioned in any other place for any speech or debate. Merhbers of 

the House of .. 1 6 1 

No member shall be appointed during his term to any civil office which shall have 
been created, or the emoluments of which shall'have been increased, during 

such term . 16 2 

No person holding any office under the United States shall, while holding such 

office, be a member of the House of. 1 6 2 

All bills for raising revenue shall originate in the House of. 1 7 1 

No Senator or Representative shall be an elector for President or Vice-President.. 2 12 

Representatives shall be bound by an oath or affirmation to support the Constitution of 

the United States. The Senators and . 6 .. 3 

Representatives among the several States. Provisions relative to the apportionment of. 

[Amendments.] . 14 2 

Representatives and Senators. Prescribing certain disqualifications for office as. 

[.Amendments.] . 14 3 

But Congress may, by a vote of two-thirds of each House, remove such disqualifi¬ 
cation .[Amendments.] 14 3 

Reprieves and pardons, except in cases of impeachment. The President may grant. 2 2 1 

Reprisal. Congress shall have power to grant letters of marque and. 1 8 11 

No State shall grant any letters of marque and. 1 10 1 

Republican form of government. The United States shall guarantee to every State in 

this Union a . 4 4 

And shall protect each of them against invasion; and on the application of the 
legislature, or of the executive (when the legislature can not be convened), 
against domestic violence. 4 4 

Reserved rights of the States and the people. The enumeration in the Constitution of 
certain rights shall not be construed to deny or disparage others retained by 

the people .[Amendments.] 9 

The powers not delegated to the United States by the Constitution, nor prohibited 
by it to the States, are reserved to the States respectively, or to the people. 

[Amendments.] . 10 

Resignation, or inability of the President, the duties and powers of his office shall de¬ 
volve on the Vice-President. In case of the death. 2 1 | 

Resignation, or inability of the President. Congress may, by law, provide for the case 

of the removal, death . 2 1 6 

Resolution, or vote (except on a question of adjournment) requiring the concurrence of 
the two Houses shall, before it becomes a law, be presented to the President. 

Every order . 17 3 

Revenue shall originate in the House of Representatives. All bills for raising. 17 1 











































59 


INDEX TO THE CONSTITUTION OP THE UNITED STATES. 


Revenue. Preference shall not be given to the ports of one State over those of another 

by any regulations of commerce or. 

Rhode Island entitled to one Representative in the first Congress. 

Right of petition. Congress shall make no law abridging the right of the people peace¬ 
ably to assemble and to petition for the redress of grievances. [Amendments.] 
Right to keep and hear arms. A well-regulated militia being necessary to the security of 
a tree *'*Sht of the people to keep and bear arms shall not be in¬ 
fringed. [Amendments.] . 

Rights in the Constitution shall not be construed to deny or disparage others retained 

by the people. The enumeration of certain.[Amendments.] 

Rights not delegated to the United States, nor prohibited to the States, are reserved to 

the States, or to the people.[Amendments.] 

Rules of its proceedings. Each House may determine the. 

Rules and regulaiions respecting the territory or other property of the United States. 

Congress shall dispose of and make all needful. 

Rules of the common law. All suits involving over twenty dollars shall be tried by jury 

according to the. .[Amendments.] 

INO tact tried by a jury shall be re-examined except according to the [Amendments.] 


Art. Sec. Cl. 

19 6 

12 3 

1 

2 

9 

10 

16 2 

4 3 2 

7 


s. 


Science and the useful arts, by securing to authors and inventors the exclusive right to 


their writings and discoveries. Congress shall have power to promote the pro¬ 
gress of . 1 8 S 

Searches and seizures shall not be violated. The right of the people to be secure against 

unreasonable .[Amendments.] 4 

And no warrants shall be issued but upon probable cause, on oath or affirmation, • 

describing the place to be searched, and the persons or things to be seized. 

[Amendments.] . 4 

Seat of Government. Congress shall exercise exclusive legislation in all cases over such 

district as may become the. 1 8 17 

Securities and current coin of the United States. Congress shall provide for punishing 

the counterfeiting of the . 1 8 6 

Security of a free State, the right of the people to keep and bear arms shall not be in¬ 
fringed. A well-regulated militia being necessary to the.[Amendments.] 2 

Senate and House of Representatives. The Congress of the United States shall consist 

of a . 11.. 

Senate of the United States. The Senate shall be composed of two Senators from each 

State, chosen by the legislature for six years. 13 1 

If vacancies happen during the recess of the legislature of a State, the executive 
thereof may make temporary appointments until the next meeting of the legis¬ 
lature . 13 2 

The Vice-President shall be President of the Senate, but shall have no vote unless 

the Senate be equally divided . 1 3 4 

The Senate shall choose their other officers, and also a President pro tempore in the 

absence of the Vice-President, or when he shall exercise the office of President. 1 3 5 

The Senate shall have the sole power to trv all impeachments. When sitting for 

that purpose, they shall be on oath or affirmation. 13 6 

When the President of the United States is tried, the Chief Justice shall preside, 
and no person shall be convicted without the concurrence of two-thirds of the 

members present . 1 3 6 

It shall be the judge of the elections, returns, and qualifications of its own members. 15 1 

A majority shall constitute a quorum to do business, but a smaller number may 
. , adjourn from day to day, and may be authorized to compel the attendance of 

absent members . 1 5 1 

It may determine the rules of its proceedings, punish a member for disorderly be¬ 
havior, and with the concurrence of two-thirds expel a member. 15 2 

It shall keep a journal of its proceedings, and from time to time publish the same, 

except such parts as may, in their judgment, require secrecy. 16 3 

It shall not adjourn for more than three days during a session, without the con¬ 
sent of the other House. 15 4 

It may propose amendments to bills for raising revenue, but such bills shall orig¬ 
inate in the House of Representatives. 17 1 

The Senate shall advise and consent to the ratification of all treaties, provided 

two-thirds of the members present concur. 2 2 2 

It shall advise and consent to the appointment of ambassadors, other public min¬ 
isters and consuls, iudges of the Supreme Court, and all other officers not here¬ 
in otherwise provided for. 2 2 2 

It mav be convened by the President on extraordinary occasions. 2 3 

No State, without its consent, shall be deprived of its equal suffrage in the Senate, 6 
Senators. Thev shall, immediatelv after assembling, under their first election, be divided 
into three classes, so that the seats of one-third shall become vacant at the 

expiration of everv second year. 13 2 

No person shall be a .Senator who shall not be thirty years of age. nine years a citi¬ 
zen of the United States, and an inhabitant, when elected, of the State for which 

he shall be chosen . 1 3 3 

The times, places, and manner of choosing Senators mav be fixed bv the legisla¬ 
ture of a State, but Congress may, by law, make or alter such regulations, except 
as to the places of choosing... 14 1 




































60 INDKX TO THE CONSTITUTION OF TUB UNITED STATES. 


Senators. If vacancies happen during the recess of the legislature of a State, the exec¬ 
utive thereof may make temporary appointments until the neKt meeting of the 

legislature .. 

They shall, in all cases, except treason, felony, and breach of the peace, be privi¬ 
leged from arrest during their attendance at the session of the Senate, and in 

going to and returning from the same. 

Senators and Representatives shall receive a compensation, to be ascertained by law. 
'Senators and Representatives shall not be questioned for any speech or debate 

in either House, in any other place. 

No Senator or Representative shall, during the time for which he was elected, be 
appointed to any civil office under the United States which shall have been cre¬ 
ated, or of which the emoluments shall have been increased, during such term. 
No person holding any office under the United States shall be a member of either 

House during his continuance in office. 

No Senator or Representative, or person holding an office of trust or profit under 

the United States shall be an elector for President and Vice-President..... 

Senators and Representatives shall be bound by an oath or affirmation to support 

the Constitution . 

No person shall be a Senator or Representative who, having, as a Federal or State 
officer, taken an oath to support the Constitution, afterward engaged in rebel¬ 
lion against the United States .[Amendments.] 

But Congress may, by a vote of two-thirds of each House, remove such disability. 

[Amendments.] . 

Service or labor in one State, escaping into another State, shall be delivered up to the 
party to whom such service or labor may be due. Fugitives from. 

Servitude, except as a punishment for crime, whereof the party shall have been duly con¬ 
victed, shall exist in the United States, or any place subject to their jurisdic¬ 
tion. Neither slavery nor involuntary.[Amendments.] 

Servitude. The right of citizens of the United States to vote, shall not be denied or 
abridged by the United States or by any State, on account of race, color, or pre¬ 
vious condition of .[Amendments.] 

Ships of war in time of peace, without the consent of Congress. No state shall keep 

troops or . 

Silver coin a tender in payment of debts. No State shall make anything but gold and- 

Slaves. Neither the United States nor any State shall assume or pay any debt or obliga¬ 
tion incurred in aid of insurrection or rebellion, or any claim for the loss or 

emancipation of any .[.Amendments.] 

Slavery nor involuntary servitude, except as a punishment for crime, whereof the party 
shall have been duly convicted, shall exist in the United States, or any places 

subject to their jurisdiction. Neither.[Amendments.] 

Soldiers shall not be quartered, in time of peace, in any house without the consent of 
the owner .[Amendments.] 

South Carolina entitled to five Representatives in the first Congress. 

Speaker and other officers. The House of Representatives shall choose their. 

Speech or of the press. Congress shall make no law abridging the freedom of [Amend¬ 
ments.] . 

Speedy and public trial by a jury. In all criminal prosecutions the accused shall have a. 

[Amendments.] . 

Standard of weights and measures. Congress shall fix the—.. 

State of the Union. The President shall, from time to time, give Congress information of 
the . 

State legislatures, and all executive and judicial officers of the United States, shall take 

an oath to support the Constitution. All members of the several. 

States. When vacancies happen in the representation from anv State, the executive au¬ 
thority shall issue writs of election to fill such vacancies. 

Congress shall have power to regulate commerce among the several. 

No State shall enter into any treaty, alliance, or confederation. 

Shall not grant letters of marque and reprisal. 

Shall not coin money . 

Shall not emit bills of credit. 

Shall not make anything but gold and silver coin a tender in payment of debts. 

Shall not pass any bill of attainder, ex post facto law, or law impairing the obliga¬ 
tion of contracts . 

Shall not grant any title of nobility. 

Shall not, without the consent of Congress, lay any duties on imports or exports, 

except what mav be absolutely necessary for executing its inspection laws. 

Shall not, without the consent of Congress, lay any duty of tonnage, keep troops or 
ships of war in time of peace, enter into anv agreement or compact with an¬ 
other State or with a foreign power, or engage in war, unless actually invaded, 

or in such imminent danger as will not admit of delay. 

Full faith and credit in every other State shall be given to the public acts, records, 

and judicial proceedings of each State. 

Congress shall prescribe the manner of proving such acts, records and proceedings. 
Citizens of each .State shall be entitled to all privileges and immunities of citizens 

in the several States. 

New States mav be admitted by Congress into this Union. 

But no new State shall be formed or erected within the jurisdiction of another 

State . 

Nor anv State formed bv the iunction of two or more Spates, or parts of States, 

without thp consent of th*^ legisUtures as well as of Congress. 

No State shall be deprived, without its consent, of its equal suffrage in the Senate.. 


Art. Sec. Cl. 


13 2 

1 6 1 

1 6 1 

1 6 1 

16 2 

16 2 

2 12 
6 .. 3 

14 3 

14 3 

4 2 3 

13 1 

15 1 

1 10 8 

1 10 1 

14 4 

13 1 

3 

12 3 

12 6 


1 

6 


18 6 

2 3 

6 .. 3 

12 4 

18 3 

1 10 1 

1 10 1 

1 10 1 

1 10 I 

1 10 1 

1 10 1 

1 10 1 

1 10 2 

1 10 3 

4 1 

4 1.. 

4 2 1 

4 3 1 

4 3 1 

4 3 1 

6 









































INDEX TO THE CONSTITUTION OP THE UNITED STATES. 61 


States. Three-fourths of the legislatures of -the States, or conventions of three-fourths of 

the States, as Congress shall prescribe, may ratify amendments to the Constitution. 5 
The United States shall guarantee a republican form of government to every State 

in the Union . 4 4 

They shall protect each State against invasion . 4 4 

And on application of the legislature, or the executive (when the legislature can 

not be convened), against domestic violence. 4 4 

The ratification by nine States shall be sufficient to establish the Constitution be¬ 
tween the States so ratifying the same. 7 

When the choice of President shall devolve on the House of Representatives, the 

vote shall be taken by States.[Amendments.] 12 

But in choosing the President the vote shall be taken by States, the representation 


A quorum for choice of President shall consist of a member or members from two- 
thirds of the States, and a majority of all the States shall be necessary to a 

choice .[Amendments.] 12 

States or the people. Powers not delegated to the United States, nor prohibited to the 


Suffrage in the Senate. No State shall be deprived, without its consent, of its equal_ 5 

Suits at common law, where the value in controversy shall exceed $ 20 , shall be tried by 

Jury .[Amendments.] 7 

In law or equity, against one of the States, by citizens of another State, or by 
citizens of a foreign State. The judicial power of the United States shall not 

extend to .[Amendments.] 11 

Supreme Court. Congress shall have power to constitute tribunals inferior to the. 18 9 

Supreme Court, and such inferior courts as Congress may establish. The judicial power 

of the United States shall be vested in one. 3 1 

Supreme Court. The judges of the Supreme and inferior courts shall hold their offices 

during good behavior . 3 j 

The compensation of the judges shall not be diminished during their continuance 

in office . 3 \ 

Shall have original jurisdiction. In all cases affecting ambassadors, other public 

ministers, and consuls, and in which a State may be a party, the. 3 2 2 

Shall have appellate jurisdiction, both as to law and the fact, with such exceptions 

and regulations as Congress may make. The. 3 2 2 

Supreme law of the land. This Constitution, the laws made in pursuance thereof, and 

the treaties of the United States, shall be the. 6 .. 2 

The judges in every State shall be bound thereby. 6 .. 2 

Suppress insurrections and repel invasions. Congress shall provide for calling forth 

the militia to execute the laws. 1 8 15 

Suppression of insurrection or rebellion shall not be questioned. The public debt, in¬ 
cluding the debt for pensions and bounties, incurred in the.[Amendments.] 14 4 

T. 

Tax shall be laid unless [n proportion to the census or enumeration. No capitation or 

other direct . 19 4 

Tax or duty shall be laid on articles exported from any State. No. 19 6 

Taxes (direct), and Representatives, how apportioned among the several States. [See 

Fourteenth Amendment, Section 2 .]. 1 2 3 

Taxes, duties, imposts, and excises. Congress shall have power to lay. 1 8 1 

They shall be uniform throughout the United States. 18 1 

Tetnporary appointments until the next meeting of the legislature. If vacancies happen 
in the Senate in the recess of the legislature of a State, the executive of the 

State shall make . 1 3 2 

Tender in payment of debts. No State shall make anything but gold and silver coin a. !• 10 1 

Term of four years. The President and Vice-President shall hold their offices for the.... 2 11 

Term for which he is elected. No Senator or Representative shall be appointed to any 
office under the United States which shall have been created, or its emoluments 

increased, during the. 16 2 

Territory or other property of the United States. Congress shall dispose of and make 

all needful rules and regulations respecting the. 4 3 2 

Test as a qualification for any office or public trust shall ever be required. No religious. 6 .. 3 

Testimony of two witnesses to the same overt act, or on confession in open court. No 

person shall be convicted of treason except on the. 3 3 1 

Three-fourths of the legislatures of the States, or conventions in three-fourths of the 

States, as Congress shall prescribe, may ratify amendments to the Constitution. 5 

Tie. The Vice-President shall have no vote unless the Senate be equally divided. 13 4 

Times, places, and manner of holding elections for Senators and Representatives shall be 

prescribed in each State by the legislature thereof. 14 1 

But Congress may, at any time, by law, make or alter such regulations, except as 

to the places of choosing Senators. 1 4 1 

Title of nobility. The United States shall not grant any. 19 8 

No State shall grant any. 1 10 1 

Title of any kind, from any king, prince, or foreign state, without the consent of Con¬ 
gress. No person holding any office under the United States shall accept of 
any . 1 ® 8 










































C2 INDEX TO TUB CONSTITUTION OP THE UNITED STATES. 


Art. Sec. Cl. 


Tonnage without the consent of Congress. No State shall lay any duty of. 1 10 a 

Tranquillity^ provide for the common defense, etc. To insure domestic.[Preamble.] 

Treason shall consist only in levying war against the United States, or in adhering to 

their enemies, giving them aid and comfort. 3 3 1 

No person shall, unless on the testimony of two witnesses to the same overt act, 

or on confession in open court, be convicted of. 3 3 1 

Congress shall have power to declare the punishment of.. 3 3 2 

Shall not work corruption of blood. Attainder of. 3 3 2 

Shall not work forfeiture, except during the life of the person attainted. Attainder 

of . 3 3 2 

Treason, bribery, or other high crimes and misdemeanors. The President, Vice-Presi¬ 
dent, and all civil officers shall be removed from office on impeachment for, 

and conviction of . 2 4 

Treason, felony and breach of the peace. Senators and Representatives shall be privileged 
from arrest while attending, or while going to or returning from the sessions 

of Congress, except in cases of. 16 1 

Treasury, but in consequence of appropriations made by law. No money shall be drawn 

from the . 1 9 7 

Treaties. The President shall have power, with the advice and consent of the Senate, 

provided two-thirds of the Senators present concur, to make. 2 2 2 

The judicial power shall extend to all cases arising under the Constitution, laws, 

and . 3 2 1 

They shall be the supreme law of the land, and the judges in every State shall be 

bound thereby ... 6 .. 2 

Treaty, alliance, or confederation. No State shall enter into any.. 1 10 1 

Trial, judgment, and punishment according to law. Judgment in cases of impeachment 
shall not extend further than to removal from, and disqualification for, office; 
but the party convicted shall nevertheless be liable and subject to indictment.... 13 7 

Trial by jury. All crimes, except in cases of impeachment, shall be tried by jury. 8 2 3 

Such trial shall be held in the State within which the crime shall have been com¬ 
mitted . 3 2 3 

Put when not committed within a State, the trial shall be at such a place as Con¬ 
gress may, by law, have directed. 3 2 3 

In all criminal prosecutions the accused shall have a speedy and public [Amend¬ 
ments.] . 6 

Suits at common law, when the amount exceeds $20, shall be by.[Amendments.] 7 

Tribunals inferior to the Supreme Court. Congress shall have power to constitute. 18 9 

Troops or ships of war in time of peace, without the consent of Congress. No State shall 

keep . 1 10 8 

Trust or profit under the United States, shall be an elector for President and Vice-Presi¬ 
dent. No Senator, Representative, or person holding any office of.. 2 12 

Two-thirds of the members present. No person shall be convicted on an impeachment 

without the concurrence of. 13 6 

Two-thirds may expel a member. Each House, with the concurrence of. 16 2 

Two-thirds. A bill returned by the President with his objections, may be repassed by 

each House by a vote of. 17 2 

Two-thirds of the Senators present concur. The President shall have power, by and 

with the advice and consent of the Senate, to make treaties, provided. 2 2 2 

Two-thirds of the legislatures of the several States. Congress shall call a convention for 

proposing amendments to the Constitution on the application of. 6 

Two-thirds of both Houses shall deem it necessary. Congress shall propose amendments 

to the Constitution whenever. 5 

Two-thirds of the States. When the choice of a President shall devolve on the House of 
Representatives, a quorum shall consist of a member or members from [Amend¬ 
ments.] . 12 

Tzvo-thirds of the whole number of Senators. A quorum of the Senate, when choosing 


Two-thirds, may remove the disabilities imposed by the third section of the Fourteenth 


Two years. Appropriations for raising and supporting armies shall not be for a longer 

term than . 1 g 12 


u. 


Union. To establish a more perfect.[Preamble.] 

The President shall, from time to time, give to Congress information of the state 

of the . 2 

New States may be admitted by Congress into this..4 

But no new States shall be formed or erected within the jurisdiction of another*.*.*.*. 4 

Unreasonable searches and seizures. The people shall be secured in their persons, houses, 

papers, and effects against.[Amendments.] 4 

And no warrants shall be issued but upon probable cause, supported by oath or 
affirmation, and particularly describing the place to be searched, and the per¬ 
sons or things to be seized.[Amendments.] 4 

Unusual punishments inflicted. Excessive bail shall not be required nor excessive fines 

imposed, nor cruel and. [Amendments.] 8 


3 

3 

3 


1 

1 









































INDEX TO THE CONSTITUTION OP THE UNITED STATES. 


63 


. Art. Sec. Cl. 

Use without just compensation. Private property shall not be taken for public. [Amend¬ 
ments.] . 5 

Useful arts, by securing for limited times to authors and inventors the exclusive right 
to their writings and inventions. Congress shall have power to promote the 
progress of science and the. 18 8 


V. 

Vacancies happening in the representation of a State. The executive thereof shall issue 
writs of election to fill. 

Vacancies happening in the Senate in the recess of the legislature of a State. How filled. 

Vacancies that happen during the recess of the Senate, by granting commissions which 
shall expire at the end of the next session. The President shall have power to 
fill ..... 

Validity of the public debt incurred in suppressing insurrection against the United 
States, including debt for pensions and bounties, shall not be questioned. 
[Amendments.] . 

Vessels bound to or from the ports of one State, shall not be obliged to enter, clear,* or 
pay duties in another State. 

Veto of a bill by the President. Proceedmgs of the two Houses upon the. 

Vice-President of the United States shall be President of the Senate. 

He shall have no vote unless the Senate be equally divided. 

The Senate shall choose a President pro tempore in the absence of the. 

He shall be chosen fbr the term of four years. 

The number and the manner of appointing electors for President and. 

In case of the removal, death, resignation, or inability of the President, the 

powers and duties of his office shall devolve on the. 

Congress may provide, by law, for the case of the removal, death, resignation, or 

inability both of the President and. 

On impeachment for, and conviction of, treason, bribery, and other high crimes 
and misdemeanors, shall be removed from office. The. 

Vice-President. The manner of choosing the. The electors shall meet in their respective 
States and vote by ballot for President and Vice-President, one of whom, at 
least, shall not be an inhabitant of the same State with themselves. [Amend¬ 
ments.] . 

The electors shall name, in distinct ballots, the person voted for as Vice-President. 

[Amendments.] . 

They shall make distinct lists of the persons voted for as Vice-President, which 
lists they shall sign and certify, and send sealed to the seat of Government di¬ 
rected to the President of the Senate.[Amendments.] 

The President of the Senate shall, in the presence of the Senate and House of 
Representatives, open all the certificates, and the votes shall be then counted. 

[Amendments.] . 

The person having the greatest number of votes shall be Vice-President, if such 

number be a majority of the whole number of electors.[Amendments.] 

If no person have a majority, then from the two highest numbers on the list the 

Senate shall choose the Vice-President.[Amendments.] 

A quorum for this purpose shall consist of two-thirds of the whole num¬ 
ber of Senators;, and a majority of the whole number shall be necessary to a 

choice...[Amendments.] 

But if the House shall make no choice of a President before the 4th of March next 
following, then the Vice-President shall act as President, as in the case of the 

death or other constitutional disability of the President.[Amendments.] 

No person constitutionally ineligible as President shall be eligible as [Amend¬ 
ments.] . 

Violence. The United States shall guarantee to every State a republican form of gov¬ 
ernment, and shall protect each State against invasion and domestic. 

Virginia entitled to ten Representatives in the first Congress. 

Vote. Each Senator shall have one. 

The Vice-President, unless the Senate be equally divided, shall have no. 

Vote requiring the concurrence of the two Houses (except upon a question of adjourn¬ 
ment) shall be presented to the President. Every order, resolution, or. 

Vole shall not be denied or abridged by the United States or by any State on account of 
race, color, or previous condition of servitude. The right of citizens of the 
United States to.[Amendments.] 

Vote of two-thirds. Each House may expel a members by a . 

A bill vetoed by the President may be repassed in each House by a. 

No person shall be convicted on an impeachment, except by a. 

Whenever both Houses shall deem it necessary, Congress may propose amendments 

to the Constitution by a. 

The President may make treaties with the advice and consent of the Senate, by a. 
Disabilities incurred by participation in insurrection or rebellion, may be re¬ 
lieved by Congress by a...[Amendments.] 


1 

1 

2 

14 

1 

1 

1 

1 

1 

2 

2 

2 

2 

2 


12 

12 

12 

12 

12 

12 

12 

12 

12 

4 
1 

1 

1 

1 

15 

1 

1 

1 

5 
2 

14 


W. 


War grant letters of marque and reprisal, and make rules concerning captures on land 

and water. Congress shall have power to declare. 1 

For governing the land and naval forces. Congress shall have power to make rules 

and articles of . 1 

No State shall without the consent of Congress, unless actually invaded, or In 

such imminent danger as will not admit of delay, engage in. 1 


2 4 

3 2 


2 8 


4 

9 6 

7 2 

3 4 

3 4 

3 5 

1 1 

1 2 

1 6 

1 6 

4 


4 

2 3 

3 1 

3 4 

7 3 


1 

5 2 

7 2 

3 6 

2 *2 

3 


8 11 

8 14 

10 8 













































64 INDEX TO TUB CONSTITUTION OP THE UNITED STATES. 


Art. 

IVar against the United States, adhering to their enemies, and giving them aid and 

comfort. Treason shall consist only in levying. 3 

Warrants shall issue but upon probable cause, on oath or affirmation, describing the 

place to be searched, and the person or things to be seized. No [Amendments.] 4 

Weights and measures. Congress shall fix the standard of. 1 

Welfare, and to secure the blessings of liberty, etc. To promote the general [Preamble.] 
Welfare. Congress shall have power to provide for the common defense and general.... 1 

Witness against himself. No person shall, in a criminal case, be compelled to be a. 

[Amendments.] . 5 

Witnesses against him. In all criminal prosecutions the accused shall be confronted 

with the .[Amendments.] 6 

Witnesses in his favor. In all criminal prosecutions the accused shall have compulsory 

process for obtaining. [Amendments.] 6 

Witnesses to the same overt act, or on confession in open court. No person shall be con¬ 
victed of treason unless on the testimony of two. 3 

Writ of habeas corpus shall not be suspended unless, in case of rebellion or invasion, the 

public safety may require it. 1 

Writs of election to fill vacancies in the representation of any State. The executive of 

the State shall issue . 1 

Written opinion of the principal officer in each of the Executive Departments on any 

subject relating to the duties of his office. The President may require the. 2 


Sec. Cl. 

3 1 

8 6 

8 1 


3 1 

9 2 

2 4 

2 1 


Y. 


Yeas and nays of the members of either House shall, at the desire of one-fifth of those 

present, be entered on the journals. 15 3 

The votes of both Houses upon the reconsideration of a bill returned by the Presi¬ 
dent with his objections shall be determined by. 17 1 














ORDINANCE OF 1787 


/ 


[THE CONFEDERATE CONGRESS, JULY 13, 1787.] 


An Ordinance for the government of the territory of the United States northwest 

of the river Ohio. 


The ordinance of 1787 is cited in Permoli v. First Municipality, 44 U. S. (3 How.) 589; 
Messenger v. Mason, 77 U. S. (10 Wall.) 507. 

The Supreme Court of the United States holds that the Ordinance of 1787 is not in 
force in Ohio or in any part of the Northwest territory; for two reasons: 

The ordinance of 1787 was superseded by the adoption of the constitution of the 
United States. Such of the provisions as are yet in force owe their validity to acts of 
congress passed under the present constitution, during the territorial government of the 
northwest territory, and since to the constitutions and laws of the states formed in it: 
Strader v. Graham, 51 U. S. (10 How.) 82. 

See to the same effect: Van Brocklen v. Tennessee, 117 U. S. 151. 

Under the decisions of the Supreme Court of the United States no statutes for the 
g-overnment of a territory or for its admission as a state can operate as a constitu¬ 
tional limitation upon such state or upon its legislature after its admission into the 
Union: Pollard’s Lessee v. Hagan, 44 U. S. (3 How.) 212; Strader v. Graham, 51 U. S. 
(10 How.) 82; Withers v. Buckley, 61 U. S. (20 How.) 84; Cardwell v. Bridge Co., 113 
U S. 205; Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1; Ward v. Race Horse, 163 
u! S.” 504; Bolin v. Nebraska, 176 U. S. 83; Coyle v. Oklahoma, 221 U. S. 559. 

“So far as this court has found occasion to advert to the effect of enabling acts as 
affirmative legislation affecting the power of new states after admission, there is to be 
found no sanction for the contention that any state may be deprived of any power 
constitutionally possessed by other states, as states, by reason of the terms in which 
the acts admitting them to the Union have been framed”: Coyle v. Oklahoma, 221 


U. S. 559. 

Accordingly upon the admission of each state into the Union, the Ordinance of 1787 
ceased to have any effect as a constitutional limitation upon such state or upon its 
legislature: Permoli v. First Municipality, 44 U. S. (3 How.) 589; Escanaba Co. v. Chicago, 
107 U. S. 678; Van Brocklin v. Tennessee, 117 U. S. 151; Hulse v. Glover, 119 U. S. 543; 
Sands v. Manistee River Improvement Co., 123 U. S. 288. 

Some parts of the ordinance of 1787, for the government of the northwestern 
territory, w'ere designed temporarily to regulate the government of the territory. These 
were necessarily abolished on a change from a territorial to a state government. Other 
parts were designed to be permanent and were sanctioned by compact. These were 
comprised in six articles which were declared to be unalterable except by common 
consent Some of these, however, being guaranteed in the federal constitution, sub- 
seauently adopted, may be considered as practically annulled. And any provisions of 
the ordinance which are repugnant to the constitution of Ohio, may be considered as 
also annulled. The people of the state adopted the constitution, and it was sanctioned 
bv congress so that here was the common consent required by the compact for the 
abrogation of any of its provisions. But the articles respecting the navigableness of 
certain waters and the carrying places between them, remain without modification, 
and also the article which prohibits slavery. These stand unrepealed, and others, unless 
thpv .should be considered as repealed by implication. They are not incompatible with 
state sovereignty: Spooner v. McConnell, 1 McLean, 337, Fed. Cases, 13245. 

The Supreme Court of Ohio, however, holds that the ordinance of 1787 is still In 
force in Ohio: State v. Boone, 84 O. S. 346, on rehearing 85 O. S. 313. 

“Perhaps it may be said that the adoption of a constitution by the people of Ohio 
e,iT.PrsPded the ordinance of 1787, and that the constitution of Ohio contains no such 
nrSvIlion as that which we have quoted from Art. II, of the ordinance of 1787. We 
rpcur aerain to the ‘articles of compact,’ and quote from Art. V: ‘And whenever any of 
tbP Uid states shall have sixty thousand free inhabitants therein, such state shall be 
n^^itted bv its delegates, into the congress of the United States, on an equal footing 
tdth the original states, in all respects whatever: Provided, the constitution and 
Government so to be formed, shall be republican, and in conformity to the principles 
pontained in these articles.’ If our constitution, instead of creating a republican form 
of government for the state, had provided a pure democracy, a government directly by 
the people, and so framed, it had been accepted by the president and congress of the 

65 



66 

• ORDINANCE OP 1787. 


United States, there might have been some reason for the claim that, in that respect, 
the compact which was to ‘remain forever unaltered, unless by common consent’ had 
been repealed by implication; yet, even under such circumstances, a conclusive presump¬ 
tion would not be raised that the compact had been altered, without the common 
consent of all the parties thereto. But if the convention which prepared our constitution 
had omitted from the bill of rights, the famous interdiction against slavery, contained 
in Art. VI, of the ordinance, would that have justified the conclusion that the compact 
was altered and that the existence of slavery in Ohio would be constitutional? Or, to 
put the question in another form, if our constitution contained nothing whatever in 
regard to the privilege of the w'rit of habeas corpus, or to trial by jury, or to pro¬ 
portional representation of the people in the legislature, or to the prohibition of cruel 
and unusual punishments, it could not be justly inferred that the great compact had 
been altered and that these privileges and guarantees had been subtracted from the 
rights of the citizens, and were not included among the rights reserved by the people 
(Const, of Ohio, Art. I, § 20), because there would have been nothing in the constitution 
which was inconsistent with the ordinance and the declared purpose thereof, ‘to fix 
and establish these principles as the basis of all laws, constitutions and governments, 
which forever hereafter shall be formed in the said territory,’ and that these ‘articles 
shall be considered as articles of compact between the original states and the people 
and states in the said territory, and forever remain unalterable unless by common con¬ 
sent’: State V. Boone, 84 O. S. 346. See also State v. Boone, 85 O. S. 313. 

“We are not unaware of various dicta which have appeared from time to time in 
opinions by learned justices of the supreme court of the United States, beginning with 
Pollard’s Lessee v. Hagan (3 How. 212), and Permoli v. First Municipality (3 How. 589), 
Strader v. Graham (10 How. 82). But it requires no acute analysis to differentiate 
those cases and to show that they do not go very thoroughly into the question whether 
the ordinance of 1787 can be superseded otherwise than by the ‘common consent’ of the 
parties to the compact as required by the terms of the ordinance, or whether such 
‘common consent’ ever has been given; and, giving the fullest effect that can be claimed 
from those remarks by the distinguished judges, it is obvious that they ignore the 
distinction between a mere act of congress which may be repealed or superseded by 
subsequent acts, and a solemn and formal ‘compact’ in the nature of a treaty as it 
were, between the proprietary states and the people and states of the territory which 
was subsequently to be erected into several states of this Union. They ignore, moreover, 
the fact that the compact, on the good faith of which the original proprietors ceded 
this territory to the United States, expressly declared that the principles declared 
therein shall be the basis of ‘all laws, constitutions and governments which forever 
hereafter shall be formed in the said territory.’ And, at best these declarations rest on 
no stronger foundation than the provision of the compact itself, namely, that a state 
with constitutional limitations as provided, ‘shall be admitted, by its delegates into the 
congress of the United States, on an equal footing with the original states, in all 
respects whatever.’ See cases above cited and Escanaba Co. v. Chicago, 170 U. S. 678, 688, 
689; Van Brocklin v. Tennessee, 117 U. S. 151, 159; Sands v. Manistee River Improvement 
Co., 123 U. S. 288, 295, 296; Willamette Iron Brid'ge Co. v. Hatch, 125 U. S. 1, 9, 10. 

“Whatever that clause may mean, it certainly does not mean that all the state 
constitutions shall be, or are, alike, nor that a new state erected in the northwest 
territory, shall be understood to surrender all the guarantees of the compact as a 
condition of admission as a state. We have thus briefly indicated the reasons for our 
belief that the great charter of the northwest territory is still under, and above, and 
before, all laws or constitutions which have yet been made in the states which are 
parts of that territory, and that under its guarantees the state has not the right to 
draft a citizen into particular service without substantial compensation. At least, it is 
clear to us that the provisions of this statute which require a professional man to 
search out nonprofessional information and certify it to state authorities,* is unnecessary, 
unreasonable and arbitrary, and is not, therefore, a valid exercise of police power. 
The demurrer to the indictment should have been sustained, and, therefore, the judgment 
of the circuit court, reversing the judgment of the court of common pleas, is affirmed 
and defendant discharged”: State v. Boone, 84 O. S. 346. See also State v. Boone, 85 
O. S. 313. 

The part of the ordinance of 1787 not repealed by the constitution or statutes in 
express words or by fair implications, is still in force in this state: Lyon v. Lyon 

1 O. C. C. (N.S.) 246, 14 O. C. D. 498. 

The constitution of Ohio, 1802, or of 1851, did not amplify or enlarge the powers 

asserted by the ordinance of 1787. The ordinance merely omitted to mention powers 

inherent in the people which the framers of that ordinance did not see fit to enumerate 
in that instrument. But the power was inherent in the people, nevertheless: Cincinnati 
V. Railway, 9 O. N. P. (N.S.) 433. 

“The ordinance of 1787 never was in force in that part of Ohio called the Connecticut 
Western Reserve”: Hutchinson v. Thompson, 9 O. 52. 

The Connecticut Reserve, ceded to the United States after the adoption of the 
ordinance of 1787, is subject to that instrument equally, as other parts of the territory 
northwest of the Ohio: Palmer v. Commissioners, 3 McLean, 226, Fed. Cases, 10688 

2 O. F. D. 264. 

For a consideration of the ordinance of 1787 see: 

McCormick v. Sullivant, 23 U. S. (10 Wheat.) 192; LaGrange v. Chouteau, 29 U. S. 

(4 Pet.) 287; The Cherokee Nation v. Georgia, 30 U. S. (5 Pet.) 1; Menard v. Asposia, 

80 U. S. (5 Pet.) 505; Lessee of Pollard’s Heirs v. Kibbe, 39 U. S. (14 Pet.) 353; Armstrong 
V. Treasurer, 41 U. S. (16 Pet.) 281: Pollard v. Hagan, 44 U. S. (3 How.) 212; Carrol v. 




67 

ORDINANCE OP 1787. 


§ 1 . 


Safford, 44 U. S. (3 How.) 441; Peamoli v. New Orleans, 44 U. S. (3 How.) 589; Jones 
V. Van Zandt, 46 U. S. (5 How.) 215; Webster v. Reid, 52 U. S. (11 How.) 437; Trustees of 
Indiana, 55 U. S. (14 How.) 268; Fanning v. Gregoire, 57 U. S. (16 How.) 524; United States 
V. Guthrie, 58 U. S. (17 How.) 284; Mackey v. Coxe, 59 U. S. (18 How.) 100; Cooper v. 
Roberts, 59 U. S. (18 How.) 173; Murray’s Lessee v. Land Co., 59 U. S. (18 How.) 272; 
Pease v. Beck, 59 U. S. (18 How.) 595; Conway v. Taylor’s Executor, 66 U. S. (1 Black) 
603; McCool v. Smith, 66 U. S. (1 Black) 459; Bates v. Brown, 72 U. S. (5 Wall.) 710; 
Messenger v. Mason, 77 U. S. (10 Wall.) 507; Pumpelly v. Green Bay Co., 80 U. S. (13 
Wall.) 166; Clinton v. Englebrecht, 80 U. S. (13 Wall.) 434; The Montello, 87 U. S. (20 
Wall.) 430; Packet Co. v. St. Louis, 100 U. S. (10 Otto) 423; Bridge Co. v. Hatch, 125 

U, S. 1; Indiana v. Kentucky, 136 U. S. 479; Mormon Church v. United States, 136 U. S. 1; 
McAllister v. United States, 141 U. S. 174; Wingard v. United States, 141 U. S. 201; Boyd 

V, Thayer, 143 U. S. 135; Bridge Co. v. Henderson City, 173 U. S. 592; Downes v. Bidwell, 
182 U. S. 244; Tean v. Calumet Canal Co., 190 U. S. 452; St. Clair County v. Transfer Co., 
192 U. S. 454. 

Section 1 . Be it ordained by the United States in Congress assembled, That 
the said territory, for the purpose of temporary government, be one district, sub¬ 
ject, however, to be divided into two districts, as future circumstances may, in 
the opinion of Congress, make it expedient. 

Section 2 . Be it ordained by the authority aforesaid. That the estates both 
of resident and non-resident proprietors in the said territory, dying intestate, shall 
descend to, and be distributed among, their children and the descendants of a 
deceased child in equal parts, the descendants of a deceased child or grandchild 
to take the share of their deceased parent in equal parts among them; and 
where there shall be no children or descendants, then in equal parts to the 
next of kin, in equal degree; and among collaterals, the children of a deceased 
brother or sister of the intestate shall have, in equal parts among them, their 
deceased parent’s share; and there shall, in no case, be a distinction between 
kindred of the whole and half blood; saving in all cases to the widow of the 
intestate, her third part of the real estate for life, and one-third part of the 
personal estate; and this law relative to descents and dower, shall remain in 
full force until altered by the legislature of the district. And until the gov¬ 
ernor and judges shall adopt laws as hereinafter mentioned, estates in the said 
territory may be devised or bequeathed by wills in writing, signed and sealed 
by him or her in whom the estate may be, (being of full age,) and attested by 
three witnesses; and real estates may be conveyed by lease and release, or bar¬ 
gain and sale, signed, sealed, and delivered by the person, being of full age, in 
whom the estate may be, and attested by two witnesses, provided such wills be 
duly proved, and such conveyances be acknowledged, or the execution thereof 
duly proved, and be recorded within one year after proper magistrates, courts, 
and registers, shall be appointed for that purpose; and personal property may 
be transferred by delivery, saving, however, to the French and Canadian 
inhabitants, and other settlers of the Kaskaskies, Saint Vincents, and the neigh¬ 
boring villages, who have heretofore professed themselves citizens of Virginia, 
their laws and customs now in force among them, relative to the descent and 
conveyance of property. 

Cited: Johns v. Johns, 1 O. S. 350; Bates v. Brown, 72 U. S. (5 Wall.) 710. 

The adoption and publication in 1795, of a law of Pennsylvania requiring but one 
witness to a deed of conveyance by implication, repealed the clause of the ordinance 
■ of 1787 requiring two witnesses: Lessee of Moore v. Vance. 1 O. 1. 

Legal title could not be acquired by parol before the statute of frauds, because 
of § 2, of the ordinance of 1787: Lessee of Lindsley v. Coats, 1 O. 243. 

This was the first legal enactment touching the conveyance of real property, in 
force after the territory had been ceded by Virginia, and since then there has always 
been a law of some kind presenting the mode of sale or conveyance of realty: Lessee of 
Allen V. Parish, 3 O. 107. 

The rule of descent in this section, that the whole and half-blood stand equal, is 
repealed by G. C. § 8574: Lyon v. Lyon, 1 O. C. C. (N.S.) 246, 14 O. C. D. 498. 

That the legislature has power to change the rule that there should be no dis¬ 
tinction in descent between kindred of the whole blood and kindred of the half-blood, 
but that the courts could not change such rule if the legislature did not, see Stone 
V, Doster, 7 O. C. C. 8, 3 O. C. D. 637 [affirmed in Stembel v. Martin, 50 O. S. 495]. 



§3. 


68 

ORDINANCE OF 1787. 


The ordinance of 1787 regulates the form of conveyance of real estate. An equity 
may be assigned or transferred in any form not prohibited by law. But, though the 
equity be conveyed, under the forms of a legal right, it does not change the title: 
Lewis V. Baird, 3 McLean, 56, Fed. Cases, 8316, 2 O. F. D. 197. 

Section 3 . Be it ordained by the authority aforesaid, That there shall be 
appointed, from time to time, by Congress, a governor, whose commission shall 
continue in force for the term of three years, unless sooner revoked by Congress ; 
he shall reside in the district, and have a freehold estate therein, in one thousand 
acres of land, while in the exercise of his office. 

Section 4 . There shall be appointed from time to time, by Congress, a 
secretary, whose commission shall continue in force for four years, unless sooner 
revoked; he shall reside in the district, and have a freehold estate therein, in 
five hundred acres of land, while in the exercise of his office. It shall be his 
duty to keep and preserve the acts and laws passed by the legislature, and the 
public records of the district, and the proceedings of the governor in his 
executive department, and transmit authentic copies of such acts and proceed¬ 
ings every six months to the Secretary of Congress. There shall also be ap¬ 
pointed a court, to consist of three judges, any two of whom to form a court, 
who shall have a common-law jurisdiction, and reside in the district, and have 
each therein a freehold estate, in five hundred acres of land, while in the 
exercise of their offices; and their commissions shall continue in force during 
good behavior. 

Section 5 . The governor and judges, or a majority of them, shall adopt 
and publish in the district such laws of the original States, criminal and civil, as 
may be necessary, and best suited to the circumstances of the district, and report 
them to Congress from time to time, which laws shall be in force in the district 
until the organization of the general assembly therein, unless disapproved of 
by Congress; but afterwards the legislature shall have authority to alter them 
as they shall think fit. 

Cited: McClaskey v. Barr, 54 Fed. 781, 7 O'. F. D. 556; Clinton v. Engelbrecht, 80 

U. S. (13 Wall.) 434. 

Under the ordinance of 1787 the governor and judges had power to adopt from the 
statutes of other states, attachment as well as other laws: Lessee of Cochran’s Heirs 

V. Loring, 17 O. 409. 

Section 6 . The governor, for the time being, shall be commander-in-chief 
of the militia, appoint and commission all officers in the same below the rank of 
general officers; all general officers shall be appointed and commissioned by 
Congress. 

Section 7 . Previous to the organization of the general assembly the gov¬ 
ernor shall appoint such magistrates, and other civil officers, in each county or 
township, as he shall find necessary for the preservation of the peace and good 
order in the same. After the general assembly shall be organized the powers 
and duties of magistrates and other civil officers shall be regulated and defined 
by the said assembly; but all magistrates and other civil officers, not herein 
otherwise directed, shall, during the continuance of this temporary government, 
be appointed by the governor. 

Section 8 . For the prevention of crimes and injuries, the laws to be 
adopted or made shall have force in all parts of the district, and for the execution 
of process, criminal and civil, the governor shall make proper divisions thereof; 
and he shall proceed, from time to time, as circumstances may require, to lay 
out the parts of the district in which the Indian titles shall have been extin¬ 
guished, into counties and townships, subject, however, to such alterations as 
may thereafter be made by the legislature. 



69 

ORDINANCE OP 1787. 


§9. 


Section 9 . So soon as there shall be five thousand free male inhabitants, 
of full age, in the district, upon giving proof thereof to the governor, they shall 
receive authority, with time and place, to elect representatives from their 
counties or townships, to represent them in the general assembly: Provided, 
That for every five hundred free male inhabitants there shall be one repre¬ 
sentative, and so on, progressively, with the number of free male inhabitants, 
shall the right of representation increase, until the number of representatives 
shall amount to twenty-five; after which the number and proportion of repre¬ 
sentatives shall be regulated by the legislature: Provided, That no person be 
eligible or qualified to act as a representative, unless he shall have been a citizen 
of one of the United States three years, and be a resident in the district, or 
unless he shall have resided in the district three years; and, in either case, 
shall likewise hold in his own right, in fee-simple, two hundred acres of land 
within the same: Provided also, That a freehold in fifty acres of land in the 
district, having been a citizen of one of the States, and being resident in the 
district, or the like freehold and two years’ residence in the district, shall be 
necessary to qualify a man as an elector of a representative. 

Section 10 . The representatives thus elected shall serve for the term of two 
years; and in case of the death of a representative, or removal from office, the 
governor shall issue a writ to the county or township, for which he was a 
member, to elect another in his stead, to serve for the residue of the term. 

Section 11 . The general assembly, or legislature, shall consist of the gov¬ 
ernor, legislative council, and a house of representatives. The legislative council 
shall consist of five members, to continue in office five years, unless sooner 
removed by Congress; any three of whom to be a quorum; and the members of 
the council shall be nominated and appointed in the following manner, to wit: 
As soon as representatives shall be elected the governor shall appoint a time and 
place for them to meet together, and when met they shall nominate ten persons, 
resident in the district, and each possessed of a freehold in five hundred acres 
of land, and return their names to Congress, five of whom Congress shall appoint 
and commission to serve as aforesaid; and whenever a vacancy shall happen in the 
council, by death or removal from office, the house of representatives shall nomi¬ 
nate two persons, qualified as aforesaid, for each vacancy, and return their names 
to Congress, one of whom Congress shall appoint and commission for the residue 
of the term; and every five years, four months at 1-east before the expiration of 
the time of service of the members of the council, the said house shall nominate 
ten persons, qualified as aforesaid, and return their names to Congress, five of 
whom Congress shall appoint and commission to serve as members of the council 
five years, unless sooner removed. And the governor, legislative council, and 
house of representatives shall have authority to make laws in all cases for the 
good government of the district, not repugnant to the principles and articles in 
this ordinance established and declared. And all bills, having passed by a ma¬ 
jority in the house, and by a majority in the council, shall be referred to the 
governor for his assent; but no bill, or legislative act whatever, shall be of any 
force without his assent. The governor shall have power to convene, prorogue, 
and dissolve the general assembly when, in his opinion, it shall be expedient. 

Section 12 . The governor, judges, legislative council, secretary, and such 
other officers as Congress shall appoint in the district, shall take an oath or affirma¬ 
tion of fidelity, and of office; the governor before the President of Congress, 
and all other officers before the governor. As soon as a legislature shall be 
formed in the district, the council and house assembled, in one room, shall 
have authority, by joint ballot, to elect a delegate to Congress, who shall have 
a seat in Congress, with a right of debating, but not of voting, during this 
temporary government. 



§ 13 . 


70 

ORDENANCE OP 1787. 


Section 13 . And for extending the fundamental principles of civil and 
religious liberty, which form the basis whereon these republics, their laws and 
constitutions, are erected; to fix and establish those principles as the basis of 
all laws, constitutions, and governments, which forever hereafter shall be formed 
in the said territory; to provide, also, for the establishment of States, and per¬ 
manent government therein, and for their admission to a share in the Federal 
councils on an equal footing with the original States, at as early periods as 
may be consistent with the general interest: 

Section 14 . It is hereby ordained and declared, by the authority aforesaid, 
that the following articles shall be considered as articles of compact, between 
the original States and the people and States in the said territory, and forever 
remain unalterable, unless by common consent, to wit: 


ARTICLE 1. 

No person, demeaning himself in a peaceable and orderly manner, shall 
ever be molested on account of his mode of worship, or religious sentiments^ 
in the said territories. 


ARTICLE 11. 

The inhabitants of the said territory shall always be entitled to the benefits of 
the writs of habeas corpus, and of the trial by jury; of a proportionate represen¬ 
tation of the people in the legislature, and of judicial proceedings according to 
the course of the common law. All persons shall b^ bailable, unless for capital 
offences, where the proof shall be evident, or the presumption great. All fines 
shall be moderate; and no cruel or unusual punishments shall be inflicted. 
No man shall be deprived of his liberty or property, but by the judgment of 
his peers, or the law of the land, and should the public exigencies make it 
necessary, for the common preservation, to take any person’s property, or to 
demand his particular services, full compensation shall be made for the same. 
And, in the just preservation of rights and property, it is understood and 
declared, that no law ought ever to be made or have force in the said territory, 
that shall, in any manner whatever, interfere with or affect private contracts, 
or engagements, bona fide, and without fraud previously formed. 

Referred to: State v. Boone, 84 O. S. 346; Shaver v. The Pennsylvania Company, 
71 Fed. 931, 9 O. F. D. 221. 

Since this ordinance went into effect persons within the territory of this state have 
been secured in the right of trial by jury: Work v. State, 2 O. S. 297. 


ARTICLE III. 

Religion, morality, and knowledge being necessary to good government and 
the happiness of mankind, schools and the means of education shall forever be 
encouraged. The utmost good faith shall always be observed towards the 
Indians; their lands and property shall never be taken from them without their 
consent; and in their property, rights, and liberty they never shall be invaded 
or disturbed, unless in just and lawful wars authorized by Congress; but laws 
founded in justice and humanity shall, from time to time, be made, for prevent¬ 
ing wrongs being done to them, and for preserving peace and friendship with 
them. 

Cited: Board of Education v. Minor, 23 O. S. 211; Burton v. Board of Education, 
5 O. N. P. (N.S.) 294, 18 O. D. (N.P.) 67. 

See Roberts v. Cooper, 61 U. S. (20 How.) 467. 




71 

ORDINANCE OF 1787. 


Art.IV. 


ARTICLE IV. 

The said territory, and the States which may be formed therein, shall for¬ 
ever remain a part of this confederacy of the United States of America, subject 
to the Articles of Confederation, and to such alterations therein as shall be con¬ 
stitutionally made; and to all the acts and ordinances of the United States in 
Congress assembled, comformable thereto. The inhabitants and settlers in the 
said territory shall be subject to pay a part of the Federal debts, contracted, or 
to be contracted, and a proportional part of the expenses of government to be 
apportioned on them by Congress, according to the same common rule and 
measure by which apportionments thereof shall be made on the other States; and 
the taxes for paying their proportion shall be laid and levied by the authority 
and direction of the legislatures of the district, or districts, or new States, as in 
the original States, within the time agreed upon by the United States in Con¬ 
gress assembled. The legislatures of those districts, or new States, shall never 
interfere with the primary disposal of the soil by the United States in Congress 
assembled, nor with any regulations Congress may find necessary for securing the 
title in such soil to the bona fide purchasers. No tax shall be imposed on lands 
the property of the United States; and in no case shall non-resident proprietors 
be taxed higher than residents. The navigable waters leading into the Mississippi 
and Saint Lawrence, and the carrying places between the same, shall be common 
highways, and forever free, as well to the inhabitants of the said territory as to 
the citizens of the United States, and those of any other States that may be 
admitted into the confederacy, without any tax, impost, or duty therefor. 

Cited: Hickok v. Hine, 23 O. S. 523. 

Where a dam is erected across a stream that is navigable within the terms of the 
ordinance, though the erection of the dam was authorized by the legislature, upon 
certain terms and conditions, if loss be sustained by navigation in consequence of the 
dam, the owners are responsible, though all diligence was used to prevent the dam 
creating obstruction to the navigation: Hogg v. Zanesville Canal Co., 5 0. 410. 

A state law including steamboats as a portion of the property is subject to taxation 
is not in violation of this section: Perry v. Torrence, 8 O. 522. 

The clause in the ordinance of 1787, for the government of the northwest territory, 
declaring the navigable rivers therein “common highways, etc., without any tax, impost 
or duty therefor,” does not prohibit the states formed in that territory from legislating 
respecting those rivers, or affecting their navigation, when their regulations subject 
equally their own citizens and the citizens of other states, to the inconvenience resulting 
from such legislation. The clause imposes a limitation upon the power of congress to 
control the navigation of such rivers, within the limits of the new states, and prohibits 
the states from imposing discriminating restrictions, duties and imposts upon the 
citizens of other states, prohibiting the states from legislating to regulate commerce 
among the states: Hutchinson v. Thompson, 9 O. 52. 

While congress may, in the assertion of its power under the constitution to regulate 
commerce among the states, exercise control over the navigable waters within this state, 
so far as to protect and improve their free navigation, yet, while this power remains 
dormant and uneffectuated by legislation, the state has plenary authority over bridges 
across them, and there is nothing in the ordinance of 1787 that precludes her from 
exercising such authority: Commissioners v. Board of Public Works, 39 O. S. 628. 

The provision in the ordinance of 1787 that certain navigable waters “shall be 
common highways and forever free,” does not prevent the improvement of the naviga¬ 
tion of such waters by a state. The ordinance referred to these waters in their natural 
state. If they shall be improved by slack-water navigation or otherwise, a reasonable 
toll for the increased facility would not violate the ordinance: Palmer v. Commissioners, 
3 McLean, 226, Fed. Cases, 10688, 2 O. F. D. 264. 

Under the ordinance of 1787, the public right consists in an unobstructed use of 
every navigable water mentioned therein, and the local right consists in crossing such 
water. The general commercial right is paramount to all state authority: Works v. 
Railroad, 5 McLean, 425, Fed. Cases, 18046, 3 O. F. D. 101. 

The provisions of the ordinance in regard to certain navigable streams, and the 
carrying places between them, do not prohibit the legislature of the state from improving 
the navigation of such rivers and carrying places: Spooner v. McConnell, 1 McLean, 337, 
Fed. Cases, 13245; see, also. Packet Co. v. Keokuk, 95 U. S. 80. 

See State v. Bridge Co., 50 U. S. (9 How.) 647; Strader v. Graham, 51 U. S. (10 How.) 82; 
State V. Bridge Co., 54 U. S. (13 How.) 518; Bridge Co. v. United States, 105 U. S. (15 
Otto) 470; Escanaba Co. v. Chicago, 107 U. S. (17 Otto) 678. 



Art.V. 


72 

ORDINANCE OF 1787. 


ARTICLE V. 

There shall be formed in the said territory not less than three nor more than 
five States; and the boundaries of the States, as soon as Virginia shall alter her 
act of cession and consent to the same, shall become fixed and established as 
follows, to wit: The western State, in the said territory, shall be bounded by the 
Mississippi, the Ohio, and the Wabash Rivers; a direct line drawn from the 
Wabash and Post Vincents, due north, to the territorial line between the United 
States and Canada; and by the said territorial line to the Lake of the Woods 
and Mississippi. The middle State shall be bounded by the said direct line, the 
Wabash from Post Vincents to the Ohio, by the Ohio, by a direct line drawn 
due north from the mouth of the Great Miami to the said territorial line, and 
by the said territorial line. The eastern State shall be bounded by the last- 
mentioned direct line, the Ohio, Pennsylvania, and the said territorial line: Pro¬ 
vided, however, And it is further understood and declared, that the boundaries 
of these three States shall be subject so far to be altered, that, if Congress shall 
hereafter find it expedient, they shall have authority to form one or two States 
in that part of the said territory which lies north of an east and west line drawn 
through the southerly bend or extreme of Lake Michigan. And whenever any 
of the said States shall have sixty thousand free inhabitants therein, such State 
shall be admitted, by its delegates, into the Congress of the United States, on an 
equal footing with the original States, in all respects whatever; and shall be at 
liberty to form a permanent constitution and State government: Provided, The 
constitution and government, so to be formed, shall be republican, and in con¬ 
formity to the principles contained in these articles, and, so far as it can be con¬ 
sistent with the general interest of the confederacy, such admission shall be 
allowed at an earlier period, and when there may be a less number of free inhabit¬ 
ants in the State than sixty thousand. n 

Cited: State v. Boone, 84 O. S. 346; Pollard v. Hagan, 44 U. S. (3 How.) 212. 

See Scott v. Sanford, 60 U. S. (19 How.) 393. 

ARTICLE VI. 

There shall be neither slavery nor involuntary servitude in the said territory, 
otherwise than in the punishment of crimes, whereof the party shall have been 
duly convicted: Provided always. That any person escaping into the same, from 
whom labor or service is lawfully claimed in any one of the original States, such 
fugitive may be lawfully reclaimed, and conveyed to the person claiming his or 
her labor or service as aforesaid. 

Be it ordained by the authority aforesaid, That the resolutions of the 23 d of 
April, 1784 , relative to the subject of this ordinance, be, and the same are hereby, 
repealed, and declared null and void. 

Done by the United States in Congress assembled, the 13 th day of July, in 
the year of our Lord 1787 , and of their sovereignty and independence the twelfth. 

Cited: State v. Boone, 84 O. S. 346. 

The fugitive slave law, passed by congress February 12, 1793, was in force in the 
northwestern territory, and was not repugnant to the ordinance of 1787: Jones v. 
Van Zant, 46 U. S. (5 How.) 215. 

See Strader v. Gorman, 51 U. S. (10 How.) 82; Ex parte Wilson, 114 U. S. 417 




Constitution of the State of Ohio of 1802. 


ARTICLE 1 . 

OF THE LEGISLATIVE POWER. 

Section, 

1. In whom legislative pov/er vested. 

2. Census; apportionment of representatives; 

number of representatives. 

3. When chosen. 

4. Qualifications of representatives. 

5. Senators, when and how chosen. 

6. Number of senators, and how apportioned. 

7. Qualifications of senators. 

8. Powers of each house; quorum. 

9. Journals, and the yeas and nays. 

10. Right of protest. 

11. Rules, and right of punishment and expulsion. 

12. Vacancies in either house, how filled. 

13. Privilege from arrest, and of speech. 

14. How contempts may be punished. 

15. When sessions to be public, and power of ad¬ 

journment. 

16. Where bills to originate. 

17. How often bills to be read; to be signed by 

speakers. 

18. Style of laws. 

19. Salaries of officers. 

20. Exclusion from office. 

21. Appropriations. 

22. How receipts, etc., to be published. 

23. Impeachments, how instituted and conducted. 

24. Who liable to impeachment; punishment. 

26. When sessions of the general assembly to be 
held._ 

26. Who eligible as candidates or members of the 

general assembly. 

27. Who eligible to other offices. 

28. Public defaulters not eligible as members of 

the general assembly. 

ARTICLE 11. 

OF THE EXECUTIVE. 

1. In whom executive power vested. 

2. When governor shall be chosen, and how; 

how his election to be contested. 

3. His term of office; who eligible, and for what 

period. 

4. He shall recommend measures, etc. 

5. May grant reprieves and pardons. 

6. His compensation. 

7. He may require written information, etc. 

8. What vacancies he may fill, etc. 

9. When and how he may convene the general 

assembly. 

10. Commander-in-chief of militia. 

11. When he mav adjourn the general assembly. 

12. Who shall fill his place when vacancy occurs. 

13. Who ineligible. 

14. Seal of state, and by whom kept. 

15. How grants and commissions issued. 

SECRETARY OF STATE. 

16. How appointed; term of office and duties. 

ARTICLE HI. 

OF THE JUDICIARY. 

1. In whom judicial power vested. 

2. The supreme court. 

3. The court of common pleas. 

4. Criminal jurisdiction. 

5. Probate and testamentary. 

6. Certiorari. 


Section. 

7. Judges, conservators of the peace. 

8. Judges, how appointed; term of office and 

salaries; ineligible to other offices. 

9. Clerks of courts; term, etc., may be removed. 

10. Terms of courts. 

11. Justices of the peace. 

12. Style of process; prosecutions and indict¬ 

ments. 

ARTICLE IV. 

OF ELECTIONS AND ELECTORS. 

1. 5. Who may vote. 

2. By ballot. 

3. Voters, when privileged from arrest. 

4. Forfeiture of elective franchise. 

ARTICLE V. 

OF THE MILITIA OFFICERS. 

1-7. How officers elected and appointed. 
ARTICLE VI. 

OF CIVIL OFFICERS. 

1. Sheriff and coroner. 

2. State treasurer and auditor. 

3. Town and township officers. 

4. Other officers. 

ARTICLE VII. 

OFFICIAL OATHS. 

1. Oath of officers. 

BRIBERY AT ELECTIONS. 

2. Bribery at elections. 

OF NEW COUNTIES. 

3. Extent of new counties, and representation 

therein. 

OF THE SEAT OF GOVERNMENT. 

4. Chillicothe; appropriations for public build¬ 

ings. 

OF AMENDMENTS TO THE CONSTITUTION. 

5. How proposed and proceeded in. 

BOUNDARIES OP THE STATE. 

6. Boundaries of the state designated. 

ARTICLE VIII. 

BILL OF RIGHTS. 

1. Right of the people to be equal in govern¬ 

ment, and to establish and alter the gov¬ 
ernment. 

2. Of slaverv and involuntary servitude. 

3. Of the right of conscience, and the necessity 

of religion and knowledge. 

4. Of the inviolability of private property. 

5. Of search warrants and general warrants. 

6. Of the freedom of speech and the press; of 

libels. 

7. Of redress in courts. 

8. Trial bv jury. 

9. Suspension of laws. 


73 





74 


Art.I, §1. CONSTITUTION OP THE STATE OP OHIO OP 1802. 


Section. 

10. Of prisoners, and how to be put to answer. 

11. Of the trial of accused persons, and their 

rights. 

12. Bailable offenses; habeas corpus. 

13. Of bail, fines, and punishments. 

14. Punishment to be proportioned to the offense. 

15. Of insolvent debtors. 

16. Laws; ex post facto; relating to contracts; 

forfeiture of estate, etc. 

17. Transportation for crimes. 

18. Of recurrence to the organic law. 

19. Of the right of the people to assemble and in¬ 

struct, etc. 

20. Of bearing arms; standing armies; submis¬ 

sion of military to civil power. 

21. Of corporal punishments under military law. 

22. Of quartering troops. 


Section. 

23. Of a poll tax. 

24. Hereditary privileges, etc. 

25. Of schools and poor children. 

26. Disposition of proceeds of section 29. 

27. Incorporation of literary associations. 

28. Powers reserved to the people. 

SCHEDULE. 

1. Of suits and claims under territorial govern¬ 

ment. 

2. Former fines and official bonds. 

3. Former officers. 

4. Prior laws. 

5. Temporary state seal. 

6. The first election. 

7. The first apportionment of representation. 


Preamble. We^ the pcoplc of the eastern division of the territory of 

the United States, north-west of the river Ohio, having the right 
of admission into the general government, as a member of the 
Union, consistent with the Constitution of the United States, the 
ordinance of Congress of one thousand seven hundred and eighty- 
seven, and of the law of Congress, entitled “ An act to enable 
the people of the eastern division of the territory of the United 
States, north-west of the river Ohio, to form a constitution and 
state government, and for the admission of such state into the 
Union, on an equal footing with the original states, and for other 
purposes;’’ in order to establish justice, promote the welfare and 
secure the blessings of liberty to ourselves and our posterity, do 
ordain and establish the following constitution or form of gov¬ 
ernment; and do mutually agree wit^h each other to form our¬ 
selves into a free and independent state, by the name of the state 
of Ohio. 


ARTICLE I. 

OF THE LEGISLATIVE POWER. 

In whom legis- SECTION 1. The legislative authority^ of this state shall be 

vested.^^^^"^ vested in a General Assembly, which shall consist of a senate 
and house of representatives, both to be elected by the people. 
(See Const. 1851 , Art. II, § i.) 


I. Powers of general assembly. II. Limitations on pow'ers of 

general assembly. 

See Const. 1851, Art. II, § 1. 

I. POWERS OF GENER.VL ASSEMBLY. 

The power of taxation is governmental in its character, is granted 
to the general assembly by the general grant of legislative power. It 
can be exercised only by the legislature in compliance with the provi¬ 
sions of the constitution; and it can be exercised by municipal corpora¬ 
tions only in accordance with statutory provisions authorizing the 
exercise of such power: Mays v. Cincinnati, 1 O. S. 268. 

A grant of legislative power carries with it the power of levying 
taxes; and this includes the power to provide for special assessments to 
pay for the public improvements which is levied upon the property bene- 
fitted by such improvement and in proportion to such benefit: Scovill 
V. Cleveland, 1 O. S. 126. 

Although the legislature may provide remedies within this state, for 
the collection of claims, or enforcement of personal liabilities arising 
out of the state, it is not within the competency of the legislative power, 
upon grounds of public policy, to create personal liabilities and impose 
them on persons and property out of the jurisdiction of Ohio, and on 
account of transactions occurring beyond the territorial limits of the 
state: Steamboat Ohio v. Stunt, 10 O. S. 583. 




75 


CONSTITUTION OP THE STATE OP OHIO OP 1802. 


“By the first section of the first article of the constitution of 1802, 
it was ordained, that, ‘the legislative authority of the state shall be 
vested in a general assembly’. This it has been said, clothed that body 
with all power which in its nature is legislative, except so far as its 
power was qualified in other parts of the same instrument, or its exercise 
restrained by the constitution of the United States, while I believe that 
theory of the constitution is erroneous and that the true doctrine is that 
the legislature like other departments of the government, exercises only 
delegated power, yet, the power delegated to the general assembly is 
undeniably broad”: McGill v. State, 34 O. S. 233. 

Under the constitution the legislature may authorize county com¬ 
missioners to subscribe to the capital stock of a railway corporation: 
Railway v. Commissioners, 1 O. S. 77. 

The general assembly like the other departments of government, 
exercise only delegated authority; and any act passed by it not falling 
fairly within the scope of “legislative authority”, is as clearly void as 
though expressly prohibited: Railway v. Commissioners, 1 O. S. 77. 

The power of the general assembly to pass laws can not be delega¬ 
ted by them to any other body, or to the people: Railway v. Commis¬ 
sioners, 1 O. S. 77. 

The act of March 1, 1851, to authorize the commissioners of a county 
to subscribe to the capital stock of the relator, does not delegate the 
legislative power or contravene the constitution of 1802, in providing 
that the subscription shall not be made until the assent of a majority 
of the electors of a county (except two townships) is first obtained at 
an election held for that purpose: Railway v. Commissioners, 1 O. S. 77. 

It was competent for the legislature under that constitution to con¬ 
struct works of internal improvement on behalf of the state, or to aid 
in their construction by subscribing to the capital stock of corporations 
created for that purpose, and to levy taxes to raise the means; and by an 
exercise of the same power to authorize a county to subscribe to a work 
of that character running through or into such county, and to levy a 
tax to pay the subscription: Railway v. Commissioners, 1 O. S. 77. 

The taxing power under the constitution of 1802 was an undeniable 
legislative function, to be exercised at the discretion of the general 
assembly, and subject to no limitation but that against poll taxes; and 
while this court is unanimous in the opinion that such laws involve a 
gross abuse of power, it possesses no authority to control that discre¬ 
tion, or to correct such abuses by the exercise of a veto power on such 
legislation: Railway v. Commissioners, 1 O. S. 77. 

A majority of the electors of a county having decided in favor of the 
subscription, and the same having actually been made before the adop¬ 
tion of the present constitution: and the commissioners having elected, 
in pursuance of said act, to deliver the bonds of the county to the 
company in payment of the subscription, and having become bound to 
do so, and afterward refusing upon demand to deliver them, and show¬ 
ing no cause for such refusal except that the act aforesaid was of 
doubtful constitutionality; a writ of mandamus is the proper remedy 
to enforce the delivery: Railway v. Commissioners, 1 O. S. 77. 

An act of the general assembly, authorizing the trustees of a town¬ 
ship through which a railroad was to be made, to subscribe, on behalf 
of the township, to the capital stock of the railroad company, is not in 
con-fiict with the constitution of 1802: Railway v. Trustees, 1 O. S. 105. 

The provisions in the charter of the “Lake and Trumbull Plank Road 
Company”, passed February 14, 1849, by which the trustees of certain 
townships are respectively authorized to subscribe to the capital stock 
of said company if a majority of the qualified electors of the townships, 
respectively, assent thereto, is not in contravention of the constitution 
of 1802: Loomis v. Spencer, 1 O. S. 153. 

Although a state legislature can not pass laws impairing the obliga¬ 
tions of contracts, yet they may regulate them, prescribe their form, 
their effect, and the mode of their discharge, and every contract is sup¬ 
posed to be made with reference to these laws: Smith v.. Parsons, 1 O. 
236. 

A legislature may create public corporations, and quasi corporations, 
or it may abolish them, or it may enlarge or restrict their powers: 
Marietta v. Fearing, 4 O. 428, 

A legislature may modify or abolish remedies and methods of demon¬ 
strating remedies as long as some substantial remedy is left for inva¬ 
sions of rights: Hays v. Armstrong, 7 O. (pt. 1) 248. 


II. LIMITATIONS ON POWERS OF GENERAL ASSEMBLY. 

The general assembly, like the other departments of government, 
exercises only delegated authority; and any act passed by it not falling 
fairly v'ithin the scope of “legislative authority”, is as clearly void as 
though expressly prohibited: Railway v. Commissioners, 1 O. S. 77. 


Art.I, § 1. 



76 


Art.I, § 2. CONSTITUTION OP TUB STATE OP OHIO OP 1802. 


The power of the greneral assembly to pass laws cannot be dele¬ 
gated by them to any other body, or to the people: Railway v. Commis¬ 
sioners, 1 O. S. 77. 

It is the right of the legislature to enact laws, and the province of 
the court to construe them. The legislature has no power to enact a law 
declaring what construction or decision the court shall make upon acts 
under which rights and liabilities have already been acquired or incurred. 
Where the court has put a construction upon an act, that construction 
is binding on all existing cases. The explanatory act operates prospec¬ 
tively, and has from the time of its passage the force and effect of a law. 
Where such explanatory act assumes to give construction to existing 
acts, and to govern the decision of the court as to cases pending it is 
judicial; and as the constitution confers judicial power upon the courts 
and withholds it from the legislature, to that extent such act 
will be inoperative. As a law, such an act will be enforced; as a con¬ 
struction of previous acts, under which cases are already pending in the 
courts, it will be held void: Schooner Aurora Borealis v. Dobbie, 
17 O. 125. 

Divorces are the subject of judicial, not legislative, action, and the 
constitution confers upon the legislature no power to grant them; but 
to avoid the consequences which would result from declaring all those 
void which have been granted by the legislature during the existence 
of the state, rendering illegitimate the issue of second marriages, the 
court will pronounce them valid; Bingham v. Miller, 17 O. 445. 

The legislature has no power to divest rights which have become 
vested nor to impair the obligation of contracts which have already 
been entered into: Smith v. Parsons, 1 O. 236. 

The broad power conferred by this section was subsequently limited 
by Art. XIII, § 1, and by Art. XIII, § 6, of the constitution of 
1851: State, ex rel., v. Cincinnati, 20 O. S. 18; Carr v. West Carrolton, 8 
O. C. C. 1, 4 O. C. D. 303. 


Census; appor¬ 
tionment of rep¬ 
resentatives; 
number of repre¬ 
sentatives. 


Section 2. Within one year after the first meeting of the 
general assembly, and within every subsequent term of four 
years, an enumeration of all the white male inhabitants, above 
twenty-one years of age, shall be made in such manner as shall 
be directed by law. The number of hbpresentatives shall, at the 
several periods of making such enumeration, be fixed by the 
legislature and apportioned among the several counties, accord¬ 
ing to the number of white male inhabitants above twenty-one 
years of age in each, and shall never be less than twenty-four, 
nor greater than thirty-six, until the number of white male in¬ 
habitants, above twenty-one years of age, shall be twenty-two 
thousand; and after that event, at such ratio that the whole num¬ 
ber of representatives shall never be less than thirty-six, nor ex¬ 
ceed seventy-two. (See Const. 1851 , Art. XL) 

See Const. 1851, Art. XI. 


Section 3. The representatives shall be chosen annually, 
by the citizens of each county, respectively, on the second Tues¬ 
day of October. (See Const. 1851 , Art. II, § 2 .) 

See Const. 1851, Art. II, § 2. 


_ ^ Section 4. No person shall be a representative, who shall 

representatives. not have attained the age ot twenty-nve years, and be a citizen 
of the United States and an inhabitant of this state; shall also 
have resided within the limits of the county in which he shall be 
chosen, one year next preceding his election, unless he shall have 
been absent on the public business of the United States, or of 
this state, and .shall have paid a state or county tax. (See Const. 
1851 . Art. II, § 3 .) 

See Const. 1851, Art. II, § 3. 


Senators; when SECTION 5. The senators shall be chosen biennially, by the 

and how chosen, qualified voters for representatives; and on their being convened 
in consequence of the first election, they shall be divided, by lot, 



CONSTITUTION OF THE STATE OF OHIO OF 1802 . Art.I, § 6. 


from their respective counties or districts, as near as can be, into 
two classes: the seats of the senators of the first class shall be 
vacated at the expiration of the first year, and of the second class 
at the expiration of the second year; so that one-half thereof, as 
near as possible, may be annually chosen for ever thereafter. 
(See Const. 1851, Art. II, § 2.) 

See const. 1851, Art. II, § 2. 


Section 6 . The number of senators shall, at the several 
periods of making the enumeration, before mentioned, be fixed 
by the legislature, and apportioned among the several counties 
or districts, to be established by law, according to the number of 
white male inhabitants of the age of twenty-one years in each, 
and shall never be less than one-third, nor more than one-half, 
of the number of representatives. 

Section 7 . No person shall be a senator who has not ar¬ 
rived at the age of thirty years, and is a citizen of the United 
States; shall have resided two years in the county or district, im¬ 
mediately preceding the election, unless he shall have been ab¬ 
sent on the public business of the United States, or of this state; 
and shall, moreover, have paid a state or county tax. (See 
Const. 1851, Art. II, § 3.) 

See Const. 1851, Art. II, § 3. 

Section 8 . The senate and house of representatives, when 
assembled, shall each choose a speaker and its other officers; be 
judges of the qualifications and elections of its members, and sit 
upon its own adjournments: two-thirds of each house shall con¬ 
stitute a quorum to do business; but a smaller number may ad¬ 
journ from day to day, and compel the attendance of absent 
members. (See Const. 1851, Art. II, §§ 6, 7.) 

See Const. 1851, Art. II, §§ 6, 7. 

Section 9 . Each house shall keep a journal of its pro¬ 
ceedings, and publish them: the yeas and nays of the members, 
on any question, shall, at the desire of any two of them, be en¬ 
tered on the journals. (See Const. 1851, Art. II, § 9.) 

See Const. 1851, Art. II, § 9. 

The journal provided for in this section, when, taken in connection 
with the laws and resolutions, is the appropriate evidence of legislative 
action; and such journal can not be contradicted by oral evidence: 
State, ex rel., v. MofRtt, 5 O. 358. 

Section 10 . Any two members of either house shall have 
liberty to dissent from, and protest against, any act or resolution 
which they may think injurious to the public or any individual, 
and have the reasons of their dissent entered on the journals. 
(See Const. 1851, Art. II, § 10.) 

See Const. 1851, Art. II, § 10. 

Section 11 . Each house may determine the rules of its 
proceedings, punish its members for disorderly behavior, and, 
with the concurrence of two-thirds, expel a member, but not a 
second time for the same cause; and shall have all other powers 


Number of sena¬ 
tors, and how 
apportioned. 


Qualifications of 
senators. 


Powers of each 
house. 


Journals, and 
yeas and nays. 


Right of mem¬ 
bers to protest. 


Rules, and right 
of punishment 
and expulsion. 




78 


Art.I, §12. CONSTITUTION OF THE STATE OP OHIO OF 1802 . 


Vacancies in 
either house; 
how filled. 


Privilege of mem¬ 
bers from arrest, 
and of speech. 


Contempts; how 
punished. 


When sessions to 
be public, and 
power of ad¬ 
journment. 


Where bills to 
originate. 


How often bills 
to be read; to be 
signed by the 
speakers. 


Style of laws. 


Salaries of 
officers. 


necessary for a branch of the legislature of a free and independ¬ 
ent state. (See Const. 1851, Art. II, § 8.) 

See Const. 1851, Art. II, § 8. 

Referred to in comparison with Art. II, § 8, of the constitution of 
1851: State, ex rel., v. Guilbert, 75 O. S. 1. 

Section 12 . When vacancies happen in either house, fhe 
governor, or the person exercising the power of the governor, 
shall issue writs of election to fill such vacancies. (See Const. 
1851, Art. II, § II.) 

See Const. 1861, Art. II, S 11. 

From the earliest history of Ohio it has been the practice of the 
general assembly to provide for vacancies that are likely to happen 
during the term of office of the persons composing their own body: State 
V. Choate, 11 O. 611. 

Section 13 . Senators and representatives shall, in all 
cases, except treason, felony or breach of the peace, be privileged 
from arrest during the session of the general assembly, and in 
going to and returning from the same;^ and for any speech or 
debate in either house, they shall not be questioned in any other 
place. (See Const. 1851, Art. II, § 12.) 

See Const. 1851, Art. II, § 12. 

Section 14 . Each house may punish, by imprisonment, 
during their session, any person not a member, who shall be guilty 
of disrespect to the house, by any disorderly or contemptuous 
behavior in their presence; provided such imprisonment shall 
not, at any one time, exceed twenty-four hours. 

Section 15 . The doors of each house, and of committees 
of the whole, shall be kept open, except in such cases as, in the 
opinion of the house, require'secrecy. Neither house shall, with¬ 
out the consent of the other, adjourn for more than two days, 
nor to any other place than that in which the two houses shall 
be sitting. (See Const. 1851, Art. II, §§ 13, 14.) 

See Const. 1851, Art. II, §§ 13, 14. 

Section 16 . Bills may originate in either house, but may 
be altered, amended or rejected by the other. (See Const. i8si. 
Art. II, § 15.) • 

See Const. 1851, Art. II, § 15. 

Section 17 . . Every bill shall be read on three different days 
in each house, unless, in case of urgency, three-fourths of the 
house where such bill is so depending, shall deem it expedient to 
dispense with this rule: and every bill having passed both houses, 
shall be signed by the speakers of their respective houses. (See 
Const. 1851, Art. II, §§ 16, 17.) 

See Const. 1851, Art. II, §§ 16, 17. 

Section 18 . The style of the laws of this state shall be: 
“ Be it enacted by the General Assembly of the State of Ohio.” 
(See Const. 1851, Art. II, § t8.) 

See Const. 1851, Art. II, § 18. 

Section 19 . The legislature of this state shall not allow 
the following officers of government greater annual salaries than 
as follows, until the year one thousand eight hundred and eight, 



79 


CONSTITUTION OF THE STATE OF OHIO OF 1802 . Art.I, § 20. 


to wit:—The governor, not more than one thousand dollars; 
the judges of the supreme court, not more than one thousand 
dollars each; the presidents of the courts of common pleas, not 
more than eight hundred dollars each; the secretary of state, 
not more than five hundred dollars; the auditor of public ac¬ 
counts, not more than seven hundred and fifty dollars; the 
treasurer, not more than four hundred and fifty dollars; no 
member of the legislature shall receive more than two dollars 
per day, during his attendance on the legislature, nor more for 
every twenty-five miles he shall travel in going to, and return¬ 
ing from, the general assembly. 

Section 20 . No senator or representative shall, during 
the time for which he shall have been elected, be appointed to 
any civil office under this state, which shall have been created, 
or the emoluments of which shall have been increased, during 
such time. {See Const. 1851, /frf. II, § 19.) 

See Const. 1851, Art. II, § 19. 

Cited: Pearson v. Stephens, 13 O. C. C. 49, 7 O. C. D. 122 [reversed, 
Pearson v. Stephens, 56 O. S. 126]. 

Section 21 . No money shall be drawn from the treas¬ 
ury, but in consequence of appropriations made by law. {See 
Const. 1851, Art. II, § 22.) 

See Const. 1851, Art. II, § 22. 

Section 22 . An accurate statement of the receipts and 
expenditures of the public money shall be attached to, and pub¬ 
lished with, the laws, annually. 

Section 23 . The house of representatives shall have the 
sole power of impeaching, but a majority of all the members 
must concur in an impeachment: all impeachments shall be 
tried by the senate; and when sitting for that purpose, the 
senators shall be upon oath or affirmation, to do justice accord¬ 
ing to law and evidence: no person shall be convicted without the 
concurrence of two-thirds of all the senators. {See Const. 1851, 
Art. II, § 23.) 

See Const. 1851, Art. IT, §23. 

Section 24 . The governor, and all other civil officers 
under this state, shall be liable to impeachment for any mis¬ 
demeanor in office; but judgment in such case shall^ not extend 
further than removal from office, and disqualification to hold 
any office of honor, profit or trust, under this state. The party, 
whether convicted or acquitted, shall, nevertheless, be liable to 
indictment, trial, judgment and punishment, according to law. 
{See Const. 1851, Art. II, § 24.) 

See Const. 1851, Art. II, § 24. 

Section 25 . The first session of the general assembly 
shall commence on the first Tuesday of March next; and for¬ 
ever after, the general assembly shall meet on the first Monday 
of December, in every year, and at^ no other period, unless di¬ 
rected by law, or provided for by this constitution. {See Const. 
1851, Art. II, § 25.) 

See Const. 1851, Art. II, § 25. 


Exclusion from 
office. 


Appropriations. 


How receipts, 
etc., to be 
published. 


Impeachments, 
how instituted 
and conducted. 


Who liable to 
impeachment and 
punishment. 


When sessions of 
the general as¬ 
sembly to be 
held. 



80 

Art.I, § 26 . CONSTITUTION OF THE STATE OF OHIO OF 1802 . 


Who eligible as SECTION 26 . No judge of any court of law or equity, 

S?mbeVs^ V the Secretary of state, attorney general, register,^ clerk of any court 
general assembly, of record, sheriff or collector, member of either house of con¬ 
gress, or person holding any office under the authority of the 
United States, or any lucrative office under the authority of this 
state, (provided that appointments in the militia or justices of 
the peace, shall not be considered lucrative offices), shall be 
eligible as a candidate for, or have a seat in, the general assem¬ 
bly. {See Const. 1851, Art. II, § 4.) ' 

See Const. 1851, Art. II, § 4. 

Who eligible to .SECTION 27 . No person shall be appointed^ to any office 

other offices. within any county, who shall not have been a citizen and in¬ 
habitant therein, one year next before his appointment, if the 
county shall have been so long erected, but if the county shall 
not have been so long erected, then within the limits of the 
county or counties out of which it shall have been taken. 


Public default¬ 
ers not eligible 
as members 
of the general 
assembly. 


Section 28 . No person who heretofore hath been, or 
hereafter may be, a collector or holder of public moneys, shall 
have a seat in either house of the general assembly, until such 
person shall have accounted for, and paid into the treasury, all 
sums for which he may be accountable or liable. {See Const. 
1851, Art. II, § 5.) 

See Const. 1851, Art. IT, § 5. 


ARTICLE II. 


OF THE EXECUTIVE. 


In whom exec¬ 
utive power, 
vested. 


Section 1 . The supreme executive power of this state 
shall be vested in the governor. {See Const. 1851, Art. Ill, 
§ S-) 

See Const. 1851, Art. Ill, § 5. 


When governor 
shall be chosen, 
and how; how 
his election to be 
contested. 


Section 2 . The governor shall be chosen by the electors 
of the members of the general assembly, on the second Tuesday 
of October, at the same places, and in the same manner, that 
they shall respectively vote for members thereof. The returns 
of every election for governor, shall be sealed up and transmitted 
to the seat of government, by the returning officers, directed to 
the speaker of the senate, who shall open and publish them, 
in the presence of a majority of the members of each house of 
the general assembly: the person having the highest number of 
votes shall be governor; but if two or more shall be equal and 
highest in votes, one of them shall be chosen governor by joint 
ballot of both houses of the general assembly. Contested elec¬ 
tions for governor, shall be determined by both houses of the 
general assembly, in such manner as shall be prescribed by law. 
{See Const. 1851, Art. Ill, §§ i, 3.) 

See Const. 1851, Art. Ill, §§ 1, 3. 


His term of of- SECTION 3 . The first govemor shall hold his office until 

and’ Monday of December, one thousand eight hundred and 

period, five, aiid Until another governor shall be elected and qualified 

to office; and forever after, the governor shall hold his office 






81 

CONSTITUTION OF THE STATE OF OHIO OF 1802 . Art.II, § 4. 


for the term of two years, and until another governor shall be 
elected and qualified; but he shall not be eligible more than six 
years, in any term of eight years. He shall be at least thirty 
years of age, and have been a citizen of the United States twelve 
years, and an inhabitant of this state four years next preceding 
his election. (See Const. 1851, Art. Ill, § 2.) 

See Const. 1861, Art. Ill, § 2. 

Secton 4. He shall, from time to time, give to the general He shall recom- 
assembly information of the state of the government, and recom- measures, 
mend to their consideration such measures as he shall deem 
expedient. (See Const. 1851, Art. Ill, § 7.) 

See Const. 1851, Art. Ill, § 7. 

vSection 5. He shall have the power to grant reprieves May grant re- 
and pardons, after conviction, except in cases of impeachment, plldons.^"'^ 
(See Const. 1851, Art. Ill, § ii.) 

See Const. 1851, Art. Ill, § 11. 

The constitution of' 1802 (Art. II, § 5), unlike the present (con¬ 
stitution of 1851, Art. Ill, § 11), did not provide for conditional pardons 
and reprieves. In the absence of such a constitutional provision, it may 
be doubtful whether the executive was authorized to grant conditional 
pardons or reprieves at all: Sterling v. Drake, 29 O. S. 457. 

Section 6 . The governor shall, at stated times, receive His compensa- 
for his services a compensation, which shall neither be increased 
nor diminished, during the term for which he shall have been 
elected. (See Const. 1851, Art. Ill, § 19.) 

See Const. 1851, Art. Ill, § 19. 

Section 7. He may require information, in writing, from He may require 
the officers in the executive department, upon any subject relat- Si^n. 
ing to the duties of their respective offices, and shall take care 
that the laws be faithfully executed. (See Const. 1851, Art. Ill, 

§ 6 .) 

See Const. 1851, Art. Ill, § 6. 

Section 8 . When any officer, the right of whose appoint- ov^rnor * to 
ment is, by this constitution, vested in the general assembly, fill, 
shall, during the recess, die, or his office by any means become 
vacant, the governor shall have power to fill such vacancy, by 
granting a commission, which shall expire at the end of the next 
session of the legislature. 

The commission is evidence of an election or appointment, without 
which the officer can not proceed to act officially; although his right to 
his office is derived from his election or appointment, of which the com¬ 
mission is only evidence; and it is not derived from the commission 
itself. Since the power of appointing judges was conferred upon the 
general assembly by the constitution of 1802 (see Art. TI, § 8), a law 
which authorized any body other than the general assembly to appoint 
a judge for any period of time beyond the close of the next session of 
the legislature would violate the constitution: State, ex rel., v. Moffitt, 5 
O. 358. 

Section 9. He may, on extraordinary occasions, convene when and how 
the general assembly, by proclamation, and shall state to them, fhe 
when assembled, the purposes for which they shall have been sembiy. 
convened, (See Const. 1851, Art. Ill, § 8.) 

See Const. 1851, Art. Ill, § 8. 




82 


Art.II, § 10. CONSTITUTION OP THE STATE OP OHIO OP 1802 . 


Commander-in- 
chief of militia. 


When he may 
adjourn the gen¬ 
eral assembly. 


Who shall fill his 
place when 
vacancy occurs. 


Who ineligible. 


Seal of state, 
and by whom 
kept. 


How grants and 

commissions 

issued. 


Secretary of 
state, how ap¬ 
pointed; term 
of office and 
duties. 


Section 10. He shall be commander-in-chief of the army 
and navy of this state, and of the militia, except when they shall 
be called into the service of the United States. {See Const. 
1851, Art. Ill, § 10.) 

See Const. 1851, Art. Ill, § 10. 

Section 11. In case of disagreement between the two 
houses, with respect to the time of adjournment, the governor 
shall have the power to adjourn the general assembly to such 
time as he thinks proper; provided it be not a period beyond 
the annual meeting of the legislature. {See Const. 1851, Art. 

Ill § 9 .) 

See Const. 1851, Art. Ill, § 9. 

.Section 12. In case of the death, impeachment, resigna¬ 
tion or removal of the governor from office, the speaker of the 
senate shall exercise the office of governor, until he be acquitted, 
or another governor shall be duly qualified. In case of the im¬ 
peachment of the speaker of the senate, or his death, removal 
from office, resignation or absence from the state, the speaker 
of the house of representatives shall succeed to the office, and 
exercise the duties thereof, until a governor shall be elected and 
qualified. {See Const. 1851, Art. Ill, §§ 15, 17.) 

See Const. 1851, Art. Ill, §§ 15, 17. 

Section 13. No member of congress, or person holding 
any office under the United States, or this state, shall execute 
the office of governor. {See Const. 1851, Art. Ill, § 14.) 

Const. 1851, Art. Ill, § 14. 

Section 14. There shall be a seal of this state, which 
shall be kept by the governor, and used by him officially, and 
shall be called “The Great Seal of the State of Ohio.'^ 
{See Const. 1851, Art. Ill, § 12.) 

See Const. 1851, Art. Ill, § 12. 

Section 15. All grants and commissions shall be in the 
name, and by the authority of the state of Ohio, sealed with the 
seal, signed by the governor, and countersigned by the secre¬ 
tary. {See Const. 1851, Art. Ill, § 13.) 

See Const. 1851, Art. Ill, § 13. 

Cited: State, ex rel., v. Moffitt, 5 O. 358. 


SECRETARY OF STATE. 

Section 16. A secretary of state shall be appointed by 
a joint ballot of the senate and house of representatives, who 
shall continue in office three years, if he shall so long behave 
himself well: he shall keep a fair register of all the official acts 
and proceedings of the governor; and shall, when required, lay 
the same, and all papers, minutes and vouchers relative thereto, 
before either branch of the legislature; and shall perform such 
other duties as shall be assigned him by law. {See Const. i8si, 
Art. Ill, §§ I, 2 .) 

See Const. 1861, Art. Ill, §§ 1, 2. 

The constitution of the state contemplates two different methods 
of conferring office; one is by appointment, the other by election. 
Whenever the office Is to be conferred by the people, or by any con- 



83 


CONSTITUTION OF THE STATE OP OHIO OP 1802 . Art.III, § 1. 


siderable body of the people, it Is spoken of as an election. When¬ 
ever it is to be conferred by an individual, or by a select number of 
individuals, as by a judicial court, or by the g'eneral assembly, it is 
spoken of as an appointment: State, ex rel., v. McCollister, 11 O. 46. 


ARTICLE III. 

OF THE JUDICIARY. 

Section 1. The judicial power of this state, both as to judicial 

matters of law and equity, shall be vested in a supreme court, power vested, 
in courts of common pleas for each county, in justices of the 
peace, and in such other courts as the legislature may, from 
time to time, establish. (See Const. 1851, Art. IV, § i.) 

See Const. 1851, Art. IV, § 1. 

Cited: Morning-star v. Selby, 15 O. 345; Way v. Hillier, 16 O. 105. 

Although the constitution provides that there shall be a supreme 
court and courts of common pleas, it was not the intention of the framers 
of the constitution to organize the courts or confer upon them any specific 
jurisdiction. Their organization, the extent of their powers, the nature 
of their duties and the manner in which these powers and duties are to 
be exercised and performed, are all left to be provided for by future 
legislation: Ludlow v. Johnson, 3 O. 553. 

“There was a time when it was dangerous for the courts of this state 
to inquire as to the constitutionality of legislative enactments; and the 
journals of our legislature will show that at least two judges have been 
impeached for this high offense. But we have fallen into better times. 

Supremacy seems to be claimed for the court instead of the general 
assembly. I am not an advocate of legislative supremacy, nor doH doubt 
the power and duty of the court, in a proper case, to declare a law 
unconstitutional. I do not believe, however, that the general assembly 
will ever pass a law with the intention of violating the constitution; nor 
can I ever consent to declare one of their acts void on this account unless 
it is palpably both against the letter and spirit of that instrument. So 
long as there is any, the least doubt upon the subject, the law must be 
enforced”: Jud.ge Hitchcock in Lewis v. McElvain, 16 O. 347; McCormick 
V. Alexander, 2 O. 66. 

The legislature has power to enact statutes; the courts have 
power to construe them. A statute which purports to explain and de¬ 
clare the meaning of a previous statute is valid as to cases which arise 
after its enactment; but it is invalid as to cases which arose before its 
enactment and subsequent to the enactment of the statute, the meaning 
of which it purports to explain: Schooner v. Dobbie, 17 O. 125. 

To an argument that a law was in contravention of the spirit of the 
constitution, it was said: “This is rather dangerous ground to tread upon 
in determining the constitutionality of a law. We may all agree as to 
the reading of the constitution, and generally as to its meaning; but 
when we come to talk of its spirit, it is a different matter. There is 
great danger that we shall conclude that spirit to be in accordance with 
our preconceived opinions or feelings of what it ought to be”: State, 
ex rel., v. Cincinnati, 19 O. 178. 

“It is the right and consequently duty of the judicial tribunals to' 
determine whether a legislative act, drawn in question in a suit pending 
before them, is opposed to the constitution of the United States, or of 
this state, and if so found, to treat it as a nullity. The presumption is 
always in favor of the validity of the law; and it is only when manifest 
assumption of authority and a clear incompatibility between the con¬ 
stitution and the law appear that the judicial power will refuse to 
execute it. Such interference can never be permitted in a doubtful 
case”: Railway v. Commissioners, 1 O. S. 77; see, to same effect. Rail¬ 
road V. Trustees, 1 O. S. 105, and Loomis v. Spencer, 1 O. S. 153. 


Section 2. The supreme court shall consist of three The supreme 
judges, any two of whom shall be a quorum. They shall have 
original and appellate jurisdiction, both in common law and 
chancery, in such cases as shall be directed by law; provided, 
that nothing herein contained shall prevent the general assembly 
from adding another judge to the supreme court after the term 
of five years, in which case the judges may divide the state into 




84 


Art.III, § 3. 


The common 
pleas. 


Criminal juris¬ 
diction. 


CONSTITUTION OF THE STATE OF OHIO OF 1802 . 


two circuits, within which any two of the judges may hold a 
court. {See Const. 1851, Art. IV, § 2.) 

See Const. 1851, Art. IV, § 2. 

Cited and referred to: Joseph Hunter’s Will, 6 O. 600; Morningstar 
V Selby 15 O 345; Way v. Hillier, 16 O. 105; In re Gregory’s Administra¬ 
tor, 19 O. 357; Bank v. Dudley, 27 U. S. (2 Pet.) 492, 1 O. F. D. 233. 

Pending a suit in the common pleas, the supreme court has no juris¬ 
diction of a motion to dissolve an injunction therein: Griffith v. Com¬ 
missioners, 20 O. 609. 

A special legislative enactment will not confer jurisdiction upon the 
supreme court to prevent the operation of an injunction allowed by the 
common pleas, in a case of which that court has taken jurisdiction: 
Griffith V. Commissioners, 20 O. 609. 

During a session of the late supreme court in bank, and while there 
was a vacation of the supreme court on the circuit in any particular 
county, a single judge might lawfully allow a writ of certiorari to be 
issued and returnable to the supreme court in that particular county: 
Gilliland v. Administrators, 2 O. S. 223. 

While the court will take judicial notice of who were members of 
the supreme court at a given time, and of the time fixed by law for the 
commencement of its sessions, it can not take such notice of the duration 
of any particular session. This fact must appear by evidence: Gilliland 
V. Administrators, 2 O. S. 223. 

Section 3. The several courts of common pleas, shall 
consist of a president and associate judges. The state shall be 
divided, by law, into three circuits: there shall be appointed in 
each circuit a president of the courts, who, during his contin¬ 
uance in office, shall reside therein. There shall be appointed in 
each county, not more than three nor less than two associate 
judges, who, during their continuance in office, shall reside 
therein. The president and associate judges, in their respective 
counties, any three of whom shall be a quorum, shall compose 
the court of common pleas; which court shall have common law 
and chancery jurisdiction in all such cases as shall be directed 
by law: provided, that nothing herein contained shall be con¬ 
strued to prevent the legislature from increasing the number 
of circuits and presidents, after the term of five years. {See 
Const. 1851, Art. IV, §§ 3, 4, 12.) 

See Const. 1851, Art. IV, §§ 3, 4, 12. 

Cited: Morningstar v. Selby, 15 O. 345; Way v. Hillier, 16 O. 105; In 
re Gregory’s Administrator, 19 O. 357; Cable v. Alvord, 27 O. S. 654; 
Pfeifer v. Green, 3 O. N. P. 156, 4 O. D. (N.P.) 239 

If the judges of the court'of common pleas are so interested that a 
quorum can not sit to take proof of a will, the case can not be certified 
to the supreme court for taking of proofs: Joseph Hunter’s Will, 6 O. 
499. 

The legislature may change the boundary of a county, and when 
such change places an associate judge within the limits of another 
county, who does not, within a reasonable time, remove into the limits 
of the county for which he was appointed, he forfeits his office: State 
V. Choate, 11 O. 611. 

Section 4. The judges of the supreme court and courts 
of common pleas, shall have complete criminal jurisdiction in 
such cases and in such manner, as may be pointed out by law. 

{See also Const. 1851, Art. IV, § 4.) 

See, also. Const. 1851, Art. IV, § 4. 

Cited and construed: Joseph Hunter’s Will, 6 O. 499; State v. John¬ 
son, 13 O. 176. 

Article III is all that can be found in the constitution relative to 

the power or jurisdiction of the supreme court, or the court of com¬ 

mon pleas. Everything, or almost everything upon the subject is left 
to future legislation. The courts, it is true, are created by the con¬ 
stitution. They are, by the same constitution, made capable of receiv¬ 
ing jurisdiction. But this jurisdiction and its extent and manner of 
exercising it must be prescribed by the law making power: Way v. 
Hillier, 16 O. 105. 




CONSTITUTION OP THE STATE OP OHIO OP 1802 . Art.III, § 6. 


The constitution of 1802, gave to the judges of the supreme court 
power to take jurisdiction of such criminal cases as might be provided 
for by law; and to exercise such jurisdiction in compliance with the pro¬ 
visions of statutes; State v. Turner, W. 20. 

Section 5 . The court of common pleas in each county, 
shall have jurisdiction of all probate and testamentary matters, 
granting administration, the appointment of guardians, and 
such other cases as shall be prescribed by law. (See Const. 
1851, Art. IV, §§ 4, 8.) 

See Const. 1851, Art. IV, §§ 4, 8. 

Cited: Morningstar v. Selby, 15 O. 345; Bank v. Dudley’s Lessee, 27 
U. S. (2 Pet.) 492, 1 O. F. D. 233. 

All last wills and testaments must be established by probate in the 
court of common pleas, and until a last will and testament is so estab¬ 
lished by probate, it can not be received as evidence of any title set up 
under it: Lessee v. Blackman, 8 O. 1. 

By our law, a particular tribunal is appointed to receive probate of 
a will. It does not signify that it is not by law a court of probate; that 
is, it is the court of common pleas with a probate side to it: Lessee v. 
Blackman, 8 O. 1. 

The supreme court and the court of common pleas are by the con¬ 
stitution made capable of receiving jurisdiction. But that jurisdiction, 
its extent and the manner of exercising it, must be prescribed by the 
law making power: Way v. Hillier, 16 O. 105. 

By the constitution of 1802, the court of common pleas had exclusive 
jurisdiction of all probate matters, and the supreme court had no power 
of review on such proceedings, by certiorari or otherwise: Gilliland v. 
Administrators, 2 O. S. 223. 

The constitution of this state prior to 1851, by its terms, conferred 
upon the court of common pleas exclusive jurisdiction of all probate 
matters: Stafford v. Missionary Association, 22 O. C. C. 399, 12 O. C. D. 
442. 

The decree of a probate court in Ohio, involving the exercise of the 
general jurisdiction of a court of equity, must be considered as coram 
non judice and void. A decree by such court, on a petition addressed 
solely to its probate jurisdiction, for the cancellation of a creditor’s 
mortgage, was an attempt to exercise chancery jurisdiction, and utterly 
void. In so far, therefore, as the decree below went beyond the juris¬ 
diction of a probate court, it is to be treated as void, and in so far as it 
is within its jurisdiction, it is exclusively so, under § 5, Art. Ill, of 
the constitution of 1802, and not subject to revision here: Gilliland v. 
Administrators, 2 O. S. 223. 

By the constitution of the state, exclusive jurisdiction in probate 
and testamentary matters is vested in the courts of common pleas, and 
the orders of those courts made in the progress of such matters, can not 
be reviewed in the supreme court upon certiorari: In re Gregory, 19 O. 
35-7. 

That certiorari would lie to proceedings in the court of common 
pleas by an executor or administrator to sell the land of a decedent 
for the payment of his debts, see Ewing v. Hollister, 7 O. (pt. 2) 138. 

Section 6 . The judges of the court of common pleas, 
shall, within their respective counties, have the same powers 
with the judges of the supreme court, to issue writs of certiorari 
to the justices of the peace, and to cause their proceedings to 
be brought before them, and the like right and justice to be done. 
(See Const. 1851, Art. IV, § 4.) 

See Const. 1851, Art. IV, § 4. 

Cited: Way v. Hillier, 16 O. 105. 

If w'e look to the constitution alone, the use of the writ of certiorari 
would seem to be confined to the removal of causes from a justice of 
peace to a higher tribunal. But such could not have been the intention 
of the framers of the constitution: Dixon v. Cincinnati, 14 O. 240. 

Section 7. The judges of the supreme court shall, by 
virtue of their offices, be conservators of the peace throughout 
the state. The presidents of the courts of common pleas shall, 
by virtue of their offices, be conservators of the peace in their 
respective circuits; and the judges of the court of common pleas 


Probate and 
testamentary. 


Certiorari. 


Judges, conser¬ 
vators of the 
peace. 




86 


Art. TTT, § 8. CONSTITUTION OP THE STATE OP OHIO OP 1802 . 



shall by virtue of their offices, be conservators of the peace in 
their respective counties. 

Cited: Way v. Hillier, 16 O. 105. 

Judges how ap¬ 
pointed, term 
of office, and 
salaries. 

Section 8. The judges of the supreme court, the presi¬ 
dents and the associate judges of the courts of common pleas, 
shall be appointed by a joint ballot of both houses of the general 
assembly, and shall hold their offices for the term of seven 
years, if so long they behave well. The judges of the supreme 
court, and the presidents of the courts of common pleas shall, 
at stated times, receive for their services an adequate compen¬ 
sation, to be fixed by law, which shall not be diminished during 
their continuance in office; but they shall receive no fees or per¬ 
quisites of office, nor hold any other office of profit or trust under 
the authority of this state or the United States. {See Const. 
1851, Art. IV, §§ 12, 14.) 

See Const. 1851, Art. IV, §§ 12, 14. 

Cited: State, ex rel., v. McCollister, 11 O. 46. 

The legislature had power to fill an existing vacancy, or one which 
was likely to happen before the next general assembly: State v. Choate, 
11 O. 511. 

While the power of appointing judges was vested in both houses of 
the general assembly, the constitution did not prescribe the particular 
manner in which it was to be exercised except that it was to be by 
joint ballot. This question was left by the constitution to be regulated 
by the legislative authorities, and it was regulated by the joint rules 
of the two houses: State, ex rel., v. Moffitt, 5 O. 358. 

A law which authorized any body other than the general assembly 
to appoint a judge for any period of time beyond the close of the next 
session of the legislature, would violate tne constitution: State, ex rel., 
V. Moffitt, 5 O. 358. 

Since the constitution did not provide the evidence by which an 
individual might prove his appointment, and since it did not prescribe 
the oath of office, the legislature had power to make provision therefor: 
St,0.te, ex rel., v. Moffitt, 6 O. 358. * 

Clerks of courts; 
term, etc.; may 
be removed. 

Section 9. Each court shall appoint its own clerk for the 
term of seven years; but no person shall be appointed clerk, 
except pro tempore, who shall not produce to the court, appoint¬ 
ing him, a certificate from a majority of the judges of the 
supreme court, that they judge him to be well qualified to 
execute the duties of the office of clerk to any court of the same 
dignity with that for which he ofifers himself. They shall be re¬ 
movable for breach of good behavior, at any time, by the judges 
of the respective courts. {See Const. 1851, Art. IV, § 16.) 

See Const. 1851, Art. IV, § 16. 

Cited: State v. McCollister, 11 O. 46. 

The appointment of a clerk of the court of common pleas must be 
by the act of the court, made in open court and entered on the minutes; 
and the announcement from the court, in session, that A. B. is appointed 
clerk vests no such right as precludes the court from subsequently re¬ 
fusing to have the appointment entered on the minutes: State v. Este, 
7 O. 134. 

Terms of courts. 

Section 10. The supreme court shall be held once a year, 
in each county, and the courts of common pleas shall be holden 
in each county, at such times and places as shall be prescribed 
by law. 

Under the constitution of 1802, the supreme court had power to make 
an order in one county for a struck jury in a case which was to be 
tried in another county: Seeley v. Blair, 6 O. 448. 




87 

CONSTITUTION OF THE STATE OP OHIO OP 1802 . 

Section 11 . A competent number of justices of the peace 
shall be elected by the qualified electors in each township in the 
several counties, and shall continue in office three years, whose 
powers and duties shall, from time to time, be regulated and de¬ 
fined by law. (See Const. 1851, Art. IV, § 9.) 

See Const. 1851, Art. IV, § 9. 

Section 12. The style of all process shall be, “The 
State of Ohio:” all prosecutions shall be carried on in the 
name and by the authority of the state of Ohio; and all indict 
ments shall conclude, “against the peace and dignity of the 
same.” (See Const. 1851, Art. IV, § 20.) 

See Const. 1851, Art. IV, § 20. 

Under the common law there were various terminations of indict¬ 
ments. depending- on the time and character of the crime charge. Upon 
the use of the proper termination, the validity of the indictment depended. 
Among the indistinguishable distinctions, the use of the singular 
instead of the plural, in referring to the statutes was sufficient to inval¬ 
idate an indictrnent. The manifest object of this constitutional pro¬ 
vision was to wipe out all such controversies by providing a sufficient 
and uniform conclusion to the allegations of fact constituting the 
charge: State v. Stapely, 19 O. D. (N.P.) 110. 


ARTICLE IV. 

OF ELECTIONS AND ELECTORS. 

Section 1. In all elections, all white male inhabitants 
above the age of twenty-one years, having resided in the state 
one year next preceding the election, and who have paid or are 
charged with a state or county tax, shall enjoy the right of an 
elector; but no person shall be entitled to vote, except in the 
county or district in which he shall actually reside at the time 
of the election. (See Const. 1851, Art. V, § i.) 

See Const. 1851, Art. V, § 1. 

Under the constitution and laws of Ohio three descriptions of persons 
were enumerated; whites, blacks and mulattoes; the two latter class 
being under disability. The mulatto was the middle term between the 
extremes, or the offspring of a white and a black. All nearer white 
than black, or of a grade between the mulatto and white, were entitled 
to enjoy every political and social privilege of the white citizen: Gray 
V. State, 4 O. 353; Jeffries v. Ankeny, 11 O. 372; Williamson v. School 
Directors, W. 578. 

A person, the offspring of a white man and a half-breed Indian 
woman, is a lawful voter: Jeffries v. Ankeny, 11 O. 372. 

An instruction that under this provision a man who had any negro 
blood was not a legal voter, was erroneous: Thacker v. Hawk, 11 O. 376. 

Children who were part white, part negro and part Indian, but more 
than one-half white, were entitled to the benefit of the common school 
fund: Lane v. Baker, 12 O. 237 [following Gray v. State, 4 O. 353]; 
see, upon this same question. State, ex rel., v. Cincinnati, 19 O. 178. 

The court said, in obiter, that under this provision a negro might be 
chosen by negro votes as school director of a school for negro children: 
State, ex rel., v. Cincinnati, 19 O. 178. 

Children whose father was three-fourths white and whose mother 
was white, were held to be white children within the meaning of the 
school laws: Williams v. School Directors, W. 578. 

Under the constitution of 1802 it was repeatedly held by the supreme 
court of the state that men having an admixture of African blood, with 
a preponderance of white blood, were white men within its meaning, 
and had the same right to vote as persons of pure white blood: Monroe 
V. Collins, 17 O. S. 665. 

Persons having a mixture of African blood, but a preponderance of 
white blood, or being more white than black, and being otherwise qual¬ 
ified, were, by the settled construction of this section, entitled to enjoy 
the right of an elector. No change was made in this respect by the 
corresponding section of the constitution of 1851. The same persons 
being otherwise qualified, are not to be excluded on account of color. 


Art.III, § 11. 


Justices of the 
peace. 


Style of process; 
prosecutions and 
indictments. 


Who may vote. 



88 


Art.IV, § 2. 


By ballot. 


Voters, when 
privileged from 
arrest. 


Forfeiture of 
elective fran¬ 
chise. 


Who may vote. 


How officers 
elected. 


Same subject. 


Same subject. 


Same subject. 


CONSTITUTION OP TUB STATE OP OHIO OP 1802 . 


but are entitled, under the present constitution, to vote at all elections: 
Anderson v. Millikin, 9 O. S. 568, 

There was said to be no substantial difference between this provision 
and Art. V, § 1, of the Ohio constitution of 1851: State, ex rel., v. 
Columbus, 9 O. C. C. 134, 6 O. C. D. 36 [affirmed, without report, in Mills 
V. City Board of Elections, 54 O. S. 631]. 

Section 2. All elections shall be by ballot. (See Const. 
1851, Art. V, § 2.) 

See Const. 1851, Art. V, § 2. 

Section 3. Electors shall, in all cases except treason, fel¬ 
ony or breach of the peace, be privileged from arrest, during 
their attendance at elections, and in going to and returning from 
the same. (See Const. 1851, Art. V, § 3.) 

See Const. 1851, Art. V, § 3. 

Section 4. The legislature shall have full power to exclude 
from the privilege of electing, or being elected, any person con¬ 
victed of bribery, perjury, or any other infamous crime. (See 
Const. 1851, Art. V, § 4.) 

See Const. 1851, Art. V, § 4. 

Section 5 . Nothing contained in this article shall be so 
construed as to prevent white male persons, above the age of 
twenty-one years, who are compelled to labor on the roads of 
their respective townships or counties, and who have resided one 
year in the state, from having the right of an elector. (See 
Const. 1851, Art. V, § i.) / 

See Const. 1851, Art. V, § 1. 

Persons having a mixture of African blood, but a preponderance of 
white blood, or being more white than black, and being otherwise qual¬ 
ified, were, by the settled construction of § 1, of Art. IV, entitled to 
enjoy the right of an elector. No change was made in this respect by 
the corresponding section of the constitution of 1851. The same per¬ 
sons being otherwise qualified, are not to be excluded on account of 
color, but are entitled, under the present constitution, to vote at all 
elections: Anderson v. Millikin, 9 O. S. 568. 


ARTICLE V. 

OF THE MILITIA OFFICERS. 

(See Const. 1851, Art. IX.) 

Section 1. Captains and subalterns in the militia, shall 
be elected by those persons, in their respective company districts, 
subject to military duty. 

Cited: State v. McCollister, 11 O. 46. 

Section 2. Majors shall be elected by the captains and 
subalterns of the battalion. 

Cited: State v. McCollister, 11 O. 46. 

Section 3. Colonels shall be elected by the majors, cap¬ 
tains and subalterns of the regiment. 

Cited: State v. McCollister, 11 O. 46, 

Section 4. Brigadiers general shall be elected by the com¬ 
missioned officers of their respective brigades. 

Cited: State v. McCollister, 11 O. 46. 




89 

CONSTITUTION OF THE STATE OF OHIO OF 1802 . Art.V, § 5 . 


Section 5. Majors general and quartermasters general Same subject, 
shall be appointed by joint ballot of both houses of the legfis- 
lature. 

Cited: State v. McCollister, 11 O. 46. 

Section 6 . The governor shall appoint the adjutant gen- Same subject, 
eral. The majors general shall appoint their aids and other di¬ 
vision staff officers. The brigadiers general shall appoint their 
brigade majors and other brigade staff officers. The command¬ 
ing officers of regiments shall appoint their adjutants, quarter¬ 
masters and others regimental staff officers; and the captains 
and subalterns shall appoint their non-commissioned officers and 
musicians. 

Cited: State v. McCollister, 11 O. 46. 

Section 7 . The captains and subalterns of the artillery Same subject, 
and cavalry, shall be elected by the persons enrolled in their re¬ 
spective corps; and the majors and colonels shall be appointed 
in such manner as shall be directed by law. The colonels shall 
appoint their regimental staff; and the captains and subalterns 
their non-commissioned officers and musicians. 


ARTICLE VI. 

OF CIVIL OFFICERS. 

Section 1 . There shall be elected in each county, one Sherifi and 
sheriff and one coroner, by the citizens thereof, who are qual¬ 
ified to vote for members of the assembly: they shall be elected 
at the time and place of holding elections for members of 
assembly: they shall continue in office two years, if they shall 
so long behave well, and until successors be chosen and duly 
qualified: provided, that no person shall be eligible as sheriff for 
a longer term than four years in any term of six years. {See 
Const. 1851, Art. X, §§ 1-3.) 

Const. 1851, Art. X, §§ 1-3. 

Cited: State v. McCollister, 11 O. 46. 

This section prescribes the time at which sheriffs shall be elected, 
and by whom, but does not prescribe the qualifications of the individ¬ 
ual who may be elected; nor is anything required of him before en¬ 
tering upon the duties of his office except that, like all other persons 
elected or appointed to office of trust or profit under the authority 
of the state, he shall take an oath of office. The fact that the sheriff 
is an officer known to the constitution and that the time, place, and 
manner of his election is prescribed in that instrument, does not 
prevent the legislature from enacting a statute to the effect that 
the sheriff is to remain in office until his successor is elected and 
qualified; Crooks v. State, 7 O. (pt. 2) 221. 

Since the constitution is silent as to the form of the oath of office 
and as to the evidence of the right to hold office, the legislature 
may prescribe the form of the oath of office and may provide for issu¬ 
ing commissions to the persons entitled to such office: State, ex rel., 

V. Moffitt, 5 O. 358. 

Section 2. The state treasurer and auditor shall be tri- state treasurer 
ennially appointed by a joint ballot of both houses of the legis- auditor, 
lature. 

Cited: State v. McCollister, 11 O. 46. 

Section 3. All town and township officers shall be chosen Town and town- 
annually, by the inhabitants thereof, duly qualified to vote for officers, 

members of assembly, at such time and place as may be di¬ 
rected by law. (See Const. 1851, Art. X, § i.) 

See Const. 1851, Art. X, § 1. 

Cited: State v. McCollister, 11 O. 46. 




90 


Art. VI, § 4. 


Other officers. 


Oath of officers. 


Bribery at elec¬ 
tions. 


Extent of new 
counties and 
representation 
therein. 


Seat of gOTCm- 
ment. 


CONSTITUTION OF THE STATE OF OHIO OF 1802. 


Section 4. The appointment of all civil officers, not other¬ 
wise directed by this constitution, shall be made in such manner 
as may be directed by law. 


ARTICLE VII. 

OFFICIAL OATHS. 

Section 1. Every person who shall be chosen or ap¬ 
pointed to any office of trust or profit, under the authority of 
this state, shall, before the entering on the execution thereof, 
take an oath or affirmation to support the constitution of the 
Lffiited States and of this state, and also an oath of office.- (See 
Const. 1851, Art. XV, § 7.) 

See Const. 1851, Art. XV, § 7. 


BRIBERY AT ELECTIONS. 

Section 2. Any elector, who shall receive any gift or 
reward for his vote, in meat, drink, money or otherwise, shall 
suffer such punishment as the law shall direct; and any per¬ 
son who shall, directly or indirectly, give, promise, or bestow any 
such reward, to be elected, shall thereby be rendered incapable, for 
two years, to serve in the office for which he was elected, and 
be subject to such other punishment as shall be directed by law. 

OF NEW COUNTIES. 

Section 3. No new county shall be established by the 
general assembly, which shall reduce the county or counties, or 
either of them, from which it shall be taken, to less contents 
than four hundred square miles; nor shall any county be laid 
off, of less contents. Every new county, as to the right of 
suffrage and representation, shall be considered as a part of the 
county or counties from which it was taken, until entitled by 
numbers to the right of representation. (See Const. 1851, Art. 

IL § 30.) 

See Const. 1851, Art. II, § 30. 

Cited; Newton v. Commissioners, 100 U. S. (10 Otto) 548, 4 O. 
F. D. 555. 

Where the legislature has erected a new county out of territory 
formerly belonging to other counties, and to compensate such counties 
for the loss of territory occasioned by the erection of the new coiinty, 
has added territory to them from adjoining counties, it is competent 
for the legislature to provide that the county receiving the accession 
of territory shall pay an equitable proportion of the indebtedness of 
the county from which such territory has been taken; and the pro¬ 
vision of the statute creating the county of Auglaize, which requires 
Allen county to pay a portion of the debts of Putnam county, is valid: 
Commissioners v. Auditor, 1 O. S. 322. 

Under the constitution of 1802 it was always supposed that the 
legislature had power to erect new counties out of those already 
in existence, only limited by the provision that required all coimtles 
to be of a certain extent of territory; and as a consequence of the 
exercise of this power, justice frequently required an adjustment of 
the property and liabilities of the counties out of which the new 
county was formed: Commissioners v. Auditor, 1 O. S. 322. 

This clause applied to any new county erected after the adoption 
of the constitution by the convention: State, ex rel., v. Dudley, 1 
O. S. 437. 


OF THE SEAT OF GOVERNMENT. 

Section 4. Chillicothe shall be the seat of government 
until the year one thousand eight hundred and eight. No money 


•c 



91 


CONSTITUTION OF THE STATE OF OHIO OF 1802 . 


shall be raised until the year one thousand eight hundred and 
nine, by the legislature of this state, for the purpose of erect¬ 
ing buildings for the accommodation of the legislature. {See 
Const. 1851, Art. XV, § i.) 

See Const. 1851, Art. XV, § 1. 

OF AMENDMENTS TO THE CONSTITUTION. 

Section 5 . That after the year one thousand eight 
hundred and six, whenever two-thirds of the general assembly 
shall think it necessary to amend or change this constitution, 
they shall recommend to the electors, at the next election for 
members to the general assembly, to vote for or against a con¬ 
vention; and if it .shall appear that a majority of the citizens 
of the state, voting for representatives, have voted for a con¬ 
vention, the general assembly shall, at their next session, call a 
convention, to consist of as many members as there be in the 
general assembly; to be chosen in the same manner, at the same 
place, and by the same electors that choose the general assembly; 
who shall meet within three months after the said election, for 
the purpose of revising, amending or changing the constitution. 
But no alteration of this constitution shall ever take place, so as 
to introduce slavery or involuntary servitude into this state. 
{See Const. 1851, Art. XVI, § 2.) 

See Const. 1851, Art. XVI, § 2. 

BOUNDARIES OF THE STATE. 

Section 6 . That the limits and boundaries of this state be 
ascertained, it is declared, that they are, as hereafter mentioned; 
that is to say: bounded on the east by the Pennsylvania line; 
on the south by the Ohio river to the mouth of the Great Miami 
river; on the west by the line drawn due north from the mouth 
of the Great Miami, aforesaid; and on the north by an east and 
west line drawn through the southerly extreme of Lake Mich¬ 
igan, running east, after intersecting the due north line afore¬ 
said, from the mouth of the Great Miami until it shall intersect 
Lake Erie or the territorial line, and thence with the same, 
through Lake Erie, to the Pennsylvania line aforesaid; provided 
always, and it is hereby fully understood and declared by this 
convention, that if the southerly bend or extreme of Lake Mich¬ 
igan should extend so far south, that a line drawn due east 
from it should not intersect Lake Erie, or if it should intersect 
the said Lake Erie, east of the mouth of the Miami river of 
the lake, then and in that case, with the assent of the congress 
of the United States, the northern boundary of this state shall 
be established by, and extended to, a direct line running from 
the southern extremity of Lake Michigan to the most northerly 
cape of the Miami Bay, after intersecting the due north line 
from the mouth of the great Miami river, after intersecting the 
due north line from the mouth of the great Miami river as afore¬ 
said, thence northeast to the territorial line, and, by the said 
territorial line, to the Pennsylvania line. 

When the constitution of 1802 was formed, the latitude of the 
southerly extremity of Hake Michig-an was uncertain; and was sup¬ 
posed to be much farther north than in fact it was. The boundaries 
of Ohio, as prescribed in the enabling act passed by congress on 
April 30, 1802 (Swan’s Land Laws, 221) in § 2 of such act, was “on 


Art.VII, § 5 . 


Of amendments 
to the constitu¬ 
tion. 


Boundaries of the 
state. 




92 


Art.VIII, § 1. CONSTITUTION OF THE STATE OF OHIO OF 1802 . 


the east by the Pennsylvania line, on the south by the Ohio river to 
the mouth of the Great Miami, on the west by a line drawn due 
north from the mouth of the Great Miami aforesaid, and on the 
north by an east and west line drawn through the southerly extreme 
of Lake Michigan running east after intersecting the due north line 
aforesaid from the mouth of the Great Miami, until it shall intersect 
Lake Erie or the territorial line, and thence with the same through 
I.ake Erie to the Pennsylvania line aforesaid.” 

The provision in this section of the Ohio constitution was probably 
inserted because it was realized that the latitude of the southern 
extreme of Lake Michigan was uncertain. See discussion in Daniels 
V. Stevens, 19 O. 222. 

As this territory became settled a sharp dispute between Ohio 
and Michigan arose, which was finally settled by an act of congress 
passed June 15, 1836, which fixed the northern boundary of Ohio at a 
line drawn directly from the southern extreme of Lake Michigan to 
the most northerly cape in Maumee bay; thence intersecting the terri¬ 
torial line; and thence with the same to the Pennsylvania line. This 
statute required Michigan to assent thereto as a condition precedent 
to its admission to the Union. Michigan assented to such provision 
December 15, 1836; and Michigan was admitted to the Union January 
26, 1837. See discussion in Myers v. Bank. 20 O. 283. 

Service of summons upon one who resided in the strip of territory 
in dispute at a time when it was in fact a part of Michigan, did not 
give jurisdiction to a court of Ohio: Daniels v. Stevens, 19 O. 222. 

A banking corporation which was engaged in business in the 
territory in dispute between Ohio and Michigan, and which was 
incorporated by the territory of Michigan, could not be regarded as 
an Ohio corporation after such territory was awarded to Ohio: Myers 
V. Bank, 20 O. 283. 


ARTICLE VIII. 

BILL OF RIGHTS. 

That the general, great and esseTitial principles of liberty 
and free government may be recognized and forever unalterably 
established, we declare. 


Right of free¬ 
dom, and to es¬ 
tablish and alter 
government. 


Section 1. That all men are born equally free and in¬ 
dependent, and have certain natural, inherent and unalienable 
rights; amongst which are the enjoying and defending life and 
liberty, acquiring, possessing and protecting property, and pur¬ 
suing and obtaining happiness and safety; and every free re¬ 
publican government, being founded on their sole authority, and 
organized for the great purpose of protecting their rights and 
liberties, and securing their independence: to effect these ends 
they have at all times a complete power to alter, reform or 
abolish their government, whenever they may deem it necessary. 
(See Const. 1851, Art. I, §§ i, 2.) 

See Const. 1851, Art. I, §§ 1, 2. 

The people have the undoubted right, under this constitution, 
to delegate just as much or just as little, political power with which 
they are invested, as they see proper, and to such agents or depart¬ 
ments of government as they see fit to delegate it. To the constitu¬ 
tion we must look for the manner and extent of this delegation; and 
from that instrument alone must every department of the government 
derive its authority to exercise any portion of this political power: 
Railroad v. Commissioners, 1 O. S. 77. 


Of slavery and 

involuntary 

servitude. 


Section 2. There shall be neither slavery nor involuntary 
servitude in this state, otherwise than for the punishment of 
crimes, whereof the party shall have been duly convicted; nor 
shall any male person, arrived at the age of twenty-one years, 
or female person arrived at the age of eighteen years, be held 
to serve any person as a servant, under the pretense of inden¬ 
ture or otherwise, unless such person shall enter into such inden¬ 
ture while in a state of perfect freedom, and on condition of a 



93 


CONSTITUTION OF THE STATE OP OHIO OP 1802 . 


hona fide consideration received, or to be received, for their 
service, except as before excepted. Nor shall any indenture of 
any negro or mulatto, hereafter made and executed out of the 
state, or if made in the state, where the term of service exceeds 
one year, be of the least validity, except those given in the case 
of apprenticeships. (See Const. 1851, Art. I, § 6.) 

See Const. 1851, Art. I, § 6. 


Section 3. That all men have a natural and indefeasible 
right to worship Almighty God, according to the dictates of con¬ 
science; that no human authority can, in any case whatever, 
control or interfere with the rights of conscience; that no man 
shall be compelled to attend, erect or support any place of 
worship, or to maintain any ministry, against his consent; and 
that no preference shall ever be given, by law, to any religious 
society or mode of worship, and no religious test shall be re¬ 
quired, as a qualification, to any office of trust or profit. But 
religion, morality and knowledge, being essentially necessary to 
good government and the happiness of mankind, schools and the 
means of instruction shall forever be encouraged by legislative 
provision, not inconsistent with the rights of conscience. (See 
Const. 1851, Art. I, § 7.) 


See Const. 1851, Art. I, § 7. 


Cited: Shryock v. Railroad, 6 O. L. R. 19 (railroad commission). 

Construed in connection with the ordinance of 1787 and with Art. I, 
§7, of the constitution of 1851: Burton v. Board of Education, 5 
O. N. r. (N.S.) 294, 18 O. D. (N.P.) 67. 

The ordinance of 1787 announced, as the policy of the northwest 
territory, that, “Religion, morality and knowledge being necessary 
to good government and the happiness of mankind, schools and the 
means of education shall forever be encouraged.” The constitution 
of 1802 reasserted this policy and emphasizes it by introducing the 
word “especially” before “necessary.” The constitution of 1851, § 7, 
Art. I, in a similar, but somewhat less felicitous language, made the 
same statement: Theological Seminary v. Idttle, 2 O. C. C. (N.S.) 
540, 15 O. C. D. 609 [affirmed. Little‘v. Theological Seminary, 72 O. S. 


417]. 

The prohibition of “common labor” upon the Sabbath, in the act 
for the prevention of immoral practices, embraces the business of 
“trading, bartering, selling, or buying any goods, wares or merchan¬ 
dise”: Cincinnati v. Rice, 15 O. 225. 

The ordinance of the city of Cincinnati, prohibiting such “trad¬ 
ing,” etc., on Sunday, is void as to those who conscientiously do 
observe the seventh day of the week as the Sabbath: Cincinnati v. 


Rice, 15 O. 225. 

The constitution of 1802 did not prevent the general assembly 
from creating separate school districts for colored children: State, v. 

Cincinnati, 19 O. 178. , 

This section did not prevent inquiry into the religious belief of 
religious corporations for the purpose of determining their property 
rights in case of controversy in factions of the same religious denom¬ 
ination: Kisor V. Stancifer, W. 323. 

The court agreed in Easterday v. Kilborn, W. 345, that a witness 
who believed in the existence of God though only as manifest in 
nature- who believed that he was as much obliged to tell the truth 
when not under oath as when under oath; and who believed in 
future rewards and punishments in this life only, and not in any future 
life- and that in case of wrong doing his conscience would punish 
him’ was competent; and the court divided evenly on the question 
whether his religious belief could in any event make him incompetent 

as a witness. . . .n.. 

From the earliest period of the history of the state to the 
adoption of the present constitution (1851), it was the policy of the 
state to exempt from taxation both the school lands and lands set 
anart for religious purposes. This legislation was in compliance with 
that clause of the old constitution of the state (1802) which required 
that schools and means of instruction should be forever encoura.ged 
by legislative provision: Martindill v. Sanger, 11 O. D. (N.P.) 727. 


Art. VIII, § 3. 


Of the rights of 
conscience; the 
necessity of re¬ 
ligion and 
knowledge. 




Art.VIII, § 4. 


Of the inviola¬ 
bility of private 
property. 


94 

CONSTITUTION OF THE STATE OF OHIO OF 1802 . 


Section 4. Private property ought and shall ever be held 
inviolate, but always subservient to the public welfare, provided 
a compensation in money be made to the owner. (See Const. 
1851, Art. I, § 19, and notes.) 

See Const. 1851, Art. I, § 19, and notes. 


I. Cited. 

II. Pr4»teetlon to private prop¬ 
erty. 

III. Public puri»ose. 

IV. Estate and interest taken. 


I. CITED. 

Symonds v. Cincinnati, 14 O. 147; 
104, 12 O. C. D. 231; Bauman v. Boss 
I..ots, Fed. Cases 15,441a, 4 O. F. D. 1 


V. Compensation. 

A. Nature. 

II. Amount. 

C. Method of determining- 
amount. 

VI. Application to taxation. 


State, ex rel., v. Barrett, 22 O. C. C. 
167 U. S. 548; United States v. In- 


II. PROTECTION TO PRIVATE I’ROPERTV. 

The policy of the state has always been, since its organization, to 
protect the right of the private owner to his property: Merrill v. Cur¬ 
rier, 2 O. N. P. 52, 3 O. D. (N.P.) 153. 

Under the constitution of 1802, the legislature had power to pro¬ 
vide that the realty of a decedent descended, subject to his debts, and 
that it might be sold for the payment thereof: Ludlow v. Johnson, 
3 O. 553. 

Under the constitution of 1802, the power of eminent domain was 
almost unrestricted: Cleveland v. Railway, 93 Fed. 113, T2 O. F. D. 459. 

The power of the legislature in the exercise of eminent domain ap¬ 
plied to property of every kind, corporeal or incorporeal, irrespective of 
the title by which such property was acquired: Cleveland v. Railway, 
93 Fed. 113, 12 O. F. D. 459. 

In order to appropriate land by eminent domain the legislature must 
first declare by law that the public welfare requires such appropriation; 
it must provide a method of determining'^the value of the land appro¬ 
priated, and must provide for payment therefor: McArthur v. Kelly, 5 
O. 139. 

So far as the law authorizes commissioners to invade private rights, 
as to take what may be necessary for canal navigation, and to this ex¬ 
tent, authority is conferred by the constitution, provided a compensation 
be paid in money to'the owner. 'The principle is founded in the superior 
claim of a whole community over an individual citizen, but then, in 
those cases only where private property is wanted for a public use or 
demanded by public welfare: Buckingham v. Smith, 10 O. 288. 

The declaration by the legislature that a river is navigable can not 
deprive the riparian owners of the right to make use of the waters 
thereof if such river is not in fact navigable and if compensation has 
not been made to them: Walker v. Board of Public Works, 16 O. 540. 

It is not necessary that the exercise of the power of eminent domain 
be made to depend on the consent or co-operation of the owner of the 
property which is appropriated: Mercer v. McWilliams, W. 132. 


III. I»URLIC I'lJRPOSE. 

The power to appropriate property for public uses, for the purpose 
of promoting the general welfare is inherent in every government, but 
this power must be exercised in cases and for objects strictly public: 
Cooper V. Williams, 4 O. 253. 

A canal is such a public work that private property may be taken 
in constructing it: Cooper v. Williams, 4 O. 253; Willyard v. Hamilton, 
7 O. (pt. 2) 111. 

The canal commissioners are authorized by law to take water enough 
from a stream for canal navigation, but not for the purpose of creating 
hydraulic power to sell or lease on behalf of the state: Buckingham v. 
State, 10 O. 288; see, also. Cooper v. Williams, 5 C). 391. 

The act of the general assembly for constructing canals, authorizing 
the taking of materials for that purpose, is constitutional, and extends 
to taking materials for repairs: Bates v. Cooper, 5 O. 115. 

The erection of a toll bridge is a public use for which land may be 
condemned: Young v, Buckingham, 5 O. 485. 

The care of public streets is such a public work that private property 
may be taken in their construction: Hickox v. Cleveland, 8 O. 543. 

Private property may be taken in the construction of a turnpike: 
Kemper v. Turnpike Co., 11 O, 392. 

If damages have been assessed for land over which a turnpike 
passes, the owner of such land can not thereafter recover from one who, 
acting under the direction of the turnpike company, has cut down timber 





95 

COXSTITUTION OP THE STATE OP OHIO OP 1802 . 


Within the line of such road and has sold it: Prather v, Ellison, 10 O. 
396. 

Authority to construct a toll road to a width not exceeding one 
hundred feet does not authorize an appropriation of land outside of 
such limits for the purpose of constructing a tollhouse: Kemper v. 
Turnpike Co., 11 O. 392. 

IV'. ESTATE AND INTEREST TAKEN. 

Under the constitution of 1802, the legislature, in the exercise of 
the right of eminent domain, possessed the power to appropriate to 
public use the fee simple title to lands, where, in its judgment, the 
public necessities required it; and the title acquired by the state by 
the appropriation of lands for canal purposes, under the eighth section 
of the act of February 4, 1825 (2 Chase, 1472), was an absolute estate 
in fee: Malone v. Toledo, 34 O. S. 541. 

Where land in a town has been deducted as a public square and 
used as such, the legislature can not authorize the town corporation 
to change its character: I.e Clercq v. Trustees, 7 O. 217. 

In the absence of specific statutory authority, a railway company 
which has once located its route and constructed its road, can not 
relocate its route and appropriate private property therefor: Moor¬ 
head V. Railway, 17 O. 340. 

It was said in Corwin v. Cowan, 12 O. S. 629, to be doubtful 
whether the state could take an absolute fee simple and then sell the 
property thus taken to other persons to use as their own private 

property; but in this case, under the law then in force, payment for 

taking such land was in the form of benefits conferred by the use to 
which it was put (see V, B, this section). 

V. COMPENSATION'. 

-\. N'ature. The term "compensation” imports that a wrong or 
injury has been inflicted which must be redressed in money. Money 
must be paid to the extent of the injury, w'hether more or less than 

the value of the property; and then, in our view, is the language of 

the constitution satisfied: Symonds v. Cincinnati, 14 O. 148. 

Under this section compensation is necessary: McArthur v. Kelly, 
5 O. 140; Foote v. Cincinnati, 11 O. 408. 

A statute which provides for the appropriation of private prop¬ 
erty, but makes no provision for payment therefor, is unconstitu¬ 
tional: Foote V. Cincinnati, 11 O. 408. 

The legislature has no power to declare navigable a river which 
is not navigable in fact; and thus to deprive the riparian owners of 
their right to make use of its water without rendering them com¬ 
pensation for such right: Walker v. Board of Public Works, 16 O. 540. 

Provision for determining and paying damages is said to be com¬ 
pensation, whether the owner is in fact paid or not: Mercer v. Mc¬ 
Williams, W. 132. 

This provision, together with the corresponding provision under 
the constitution of the United States, requires compensation to be 
made to the person w'hose property has been appropriated: Cooper 
V. Williams, 4 O. 253 [affirmed on bill of review. Cooper v. Williams, 
5 O. 391]. 

The injuries -w'hich are caused by grading and leveling streets 
are not protected by this constitutional provision, although the legis¬ 
lature may provide for compensation therefor: Hickox v. Cleveland, 
8 O. 543. 

B. Amount. The benefits conferred by the purpose for tvhich the 
land is appropriated may be deducted from the value of the land 
which is appropriated: Symonds v. Cincinnati, 14 O. 147; Brown v. 
Cincinnati, 14 O. 541. 

C. Method of determining amount. This section made no pro¬ 
vision as to how compensation should be determined: Telephone Co. 
v. Cush, 14 O. D. (N.P.) 148. 

Under § 4, Art. VIII, of the constitution of 1802, no limitation was 
imposed as to the character of the tribunal or person that the law 
should clothe with authority to take such property for the public 
welfare, nor was the time prescribed when compensation should be 
made for property taken. In this and other respects the right of 
eminent domain is abridged by the provisions of the constitution of 
1851: Wagner v. Railway, 38 O. S. 32. 

The owner of property had no constitutional right to a jury to 
assess his compensation, since this was not recognized at common law 
either in England or in this country prior to the adaptation of this 
constitution as a proper case for a jury: Willyard v. Hamilton, 7 O. 
(pt. 2) 111. 

Under the provision of the constitution of 1802, that private prop¬ 
erty shall be held inviolate, but subservient to the public welfare, pro¬ 
vided compensation in money be made the owner, it was held that 


Art. VIII, § 4. 




96 


Art.VII, § 5. 


Search warrants, 
and general war¬ 
rants. 


Of the freedom 
of speech and 
the press; of 
libels. 


CONSTITUTION .OP THE STATE OP OHIO OP 1802 . 


compensation was not required to be first made, and that it might be 
taken for such use when provision for the assessment and payment 
is made, whether the owner was actually paid or not, it being suffi¬ 
cient if provision be made by law for compensating him; also benefits 
conferred might be set off against the value of the property so taken. 
No jury being required, it w'as the practice, authorized by statute, to 
have the compensation determined by three commissioners who were 
sent out to view the premises. Manifest abuses arose under this sys¬ 
tem of appropriating private property, which were remedied in the 
constitution of 1851: Railroad v. Bolen, 76 O. S. 376. 

Under this section a provision for compensation was sufficient 
without provision for compensation in advance: Bates v. Cooper, 5 
O. 115. 


VI. APPLICATION TO TAXATION. 

In Ohio this clause has been regarded as applicable to taxation. 
It did not forbid assessments levied for public improvements upon 
property benefited thereby and no appropriation to such benefits: 
Scovill V. Cleveland, 1 O. S. 126. 

This section does not prevent the legislature from requiring prop¬ 
erty owners to construct sidewalks in front of their lands, or to charge 
them with the cost thereof if they fail to construct them: Bonsall v. 
Lebanon, 19 O. 418. 

This section did not prevent the legislature from authorizing a 
public corporation or a public quasi corporation to subscribe for stock 
in railroads or other corporation for public improvement, and to pay 
therefor by taxation; Railroad v. Commissioners, 1 O. S. 77; Railway v. 
Township Trustees, 1 O. S. 105. Contra; Griffith v. Commissioners, 20 
O. 609. 

Section 5 . That the people shall be secure in their per¬ 
sons, houses, papers and possessions, from unwarrantable 
searches and seizures; and that general warrants, whereby an 
officer may be commanded to search suspected places, without 
probable evidence of the fact committed, or to seize any person 
or persons not named, whose offenses are not particularly de¬ 
scribed, and without oath or affirmation, are dangerous to liberty, 
and shall not be granted. (See Const. 1851, Art. I, § 14.) 

See Const. 1851, Art. I, § 14. 

This section was compared with Art. I, § 14, of the constitution of 
1851; Eichenlaub v. State, 36 O. S. 140. 

It will not justify searching a man’s house that one has been 
arrested there, having in his possession counterfeit paper. Existence 
on the premises of guilty implements, or evidences of crime, will 
warrant a search, but if not found there, the jurisdiction fails. Cir¬ 
cumstances of reasonable suspicion may be proved in mitigation; 
Simpson v. McCaffrey, 13 O. 508. 


Section 6 . That the printing presses shall be open and 
free to every citizen who wishes to examine the proceedings of 
any branch of government, or the conduct of any public of¬ 
ficer; and no law shall ever restrain the right thereof. Every 
citizen has an indisputable right to speak, write or print, upon 
any subject, as he thinks proper, being liable for the abuse of 
that liberty. In prosecutions for any publication respecting the 
official conduct of men in a public capacity, or where the matter 
published is proper for public information, the truth thereof may 
always be given in evidence; and in all indictments for libels, the 
jury shall have the right to determine the law and the facts, under 
the direction of the court, as in other cases. (See Const. i8qi, 
Art. /, §11.) 

See Const. 1851, Art. I, § 11. 

Construed; Montgomery v. State, 11 O. 424. 

This section does not make the jury the judges of the law in 
criminal cases, but it only authorizes them to pass upon the facts 
under the direction of court as in other cases; Montgomery v State 
11 O. 424. 



97 


CONSTITUTION OF THE STATE OF OHIO OF 1802 . 


Section 7. That all courts shall be open, and every per¬ 
son,^ for an injury done him in his lands, goods, person or rep¬ 
utation, shall have remedy by the due course of law, and right 
and justice administered, without denial or delay. (See Const. 
1851, Art. /, § 16.) 

See Const. 1851, Art. I, § 16. 

Cited: Yensen v. State, 7 O. N. P. 18, 9 O. D. (N.P.) 168. 

Section 8 . That the right of trial by jury shall be invio¬ 
late. (See Const. 1851, Art. I, § 5.) 

See Const. 1851, Art. I, § 5. 

This section, together with the ordinance of 1787, were intended 
to guard the right of trial by jury; but it was never intended to secure 
a jury in every kind of case. The right which was secured was the 
right as it existed in the common law; and it was not intended to 
restrict the future development of our jurisprudence so as to prevent 
proceedings in equity or other proceedings in which trial by jury was 
not customary or practicable: Cochran v. Loring, 17 O. 409. 

It will be observed that the right of trial by jury was not intro¬ 
duced into our system of jurisprudence for the first time by this 
section, although this was the first constitution of the state. The 
right appears to be- therein recognized as pre-existing, and the purpose 
of the provision would seem to be to pres.erve the right, whatever its 

nature and scope might be, inviolate: Rechner v. Warner, 22 O. S. 275. 

The section in the present constitution (Art. I, § 5, constitution of 
1851) preserving inviolate the right of trial by jury, is found in the 
constitution of 1802, and in the same words: Turnpike Co. v. Parks, 
50 O. S. 568. 

This section did not render unconstitutional statutes which pro¬ 
vide for ascertaining the value of improvements under the occupying 
claimant law by commissioners instead of by a jury: Hunt v. Mc¬ 
Mahon, 5 O. 132; Klever v. Seawall, 65 Fed. 393, 12 C. C. A. 661, 9 

O. F. D. 95. Contra: Bank v. Dudley, 27 U. S. (2 Pet.) 492, 1 O. F. D. 233. 

This section did not require the use of a jury in determining the 
compensation to be made for property appropriated for public use; 
such question having been determined at England law by commission¬ 
ers, and not by a jury: Willyard v, Hamilton, 7 O. (pt. 2) 111. 

The validity of statutes which provided for determining the value 
of the land appropriated without the intervention of a jurj’- was 
assumed: Hogg v. Canal & Mfg. Co., 5 O. 410; Symonds v. Cincinnati, 
14 O. 147; Cooper v. Williams, 4 O. 253; Young v. Buckingham, 5 O. 485. 

If a grading and leveling of public streets has injured private 
property, it is not necessary that the amount of such injury should be 
ascertained by a jury: Hickox v. Cleveland, 8 O. 544. 

From time immemorial, the practice of assessing damages, by 
commissioners, has been used in the United States. And yet, notwith¬ 
standing so many have revised and changed their constitutions, it has 
never been thought necessary to make the guarantee of a jury -trial 
more comprehensive in its meaning than it was before supposed to be: 
Hickox V. Cleveland, 8 O. 544. 

Section 9. That no power of suspending laws shall be 
exercised, unless by tlie legislature. {See Const. 1851, Art. 

I, § 18.) 

See Const. 1851, Art. I, § 18. 

Under the constitution of 1802, Art. Vll, § 9, the phraseology of the 
language used is but slightly different from the constitution of 1851, 
Art. I, § 18: Ex parte Mullaney, 8 O. N. P. 49, 10 O. D. (N.P.) 419. 

Section 10. That no person, arrested or confined in jail, 
shall be treated with unnecessary rigor, or be put to answer any 
criminal charge, but by presentment, indictment or impeachment. 
(See Const. 1851, Art. I, § 10.) 

See Const. 1851, Art. I, § 10. 

No person in Ohio can be held to answer, upon trial, for a crime, 
except it be by the indictment or presentment of a grand jury, and he 
has the right by the same organic law to demand the nature and 
cause of the accusation against him. He has the right to require such 
accusations to be embodied in a methodical and legal form, with time, 
place and circumstances, otherwise he will be unable to prepare his 
defense to resist the charge: Grummond v. State, 10 O. 610. 


Art. VIII, § 7. 


Of redress in 
courts. 


Trial by jury. 


Suspension of 
laws. 


Of prisoners, 
and charges 
against them. 




98 


Art.VIII, § 11. 


Of the trial of 
accused persons, 
and their rights. 


CONSTITUTION OP THE.SlVVi'E OP OHIO OP 1802 . 


In Campbell’s case (Tappan, 29, 33), decided in 1816, an informa¬ 
tion was filed, and it was urged that, notwithstanding the above lan¬ 
guage of the constitution of 1802, the common law power to proceed 
by information still existed. But the court held that the constitution 
(of 1802) prohibited proceedings by information. This seems to have 
been the only attempt to proceed by information in any criminal case 
under that constitution, unless we except contempts of court in which 
the necessity for any other proceeding than one of a summary char¬ 
acter does not exist. They are indeed in legal strictness, not criminal 
cases: Eichenlaub v. State, 36 O. S. 140. 

The grand jury system has been recognized and in force during 
the entire existence of the state, and legislation thereupon dates back to 
the very first volume of Ohio laws under the constitution of 1802: 
State V. Stichtenoth, 8 O. N. P. (N.S.) 297, 19 O. D. (N.P.) 623. 

For right of prosecutor to be present during the session of the 
grand jury, see State v. Stichtenoth, 8 O. N. P. (N.S.) 297, 19 O. D. 
(N.P.) 623. 

It is true, for offenses strictly criminal or infamous, punishment 
can only be inflicted through the medium of an indictment or present¬ 
ment of the grand jury [constitution of Ohio, Art. VIII, § 10]. There 
are, however, many offenses, made so by statute, which are but quasi 
criminal, and where the legislature may direct the mode of redress, 
untrammeled by this constitutional provision. Such is Sabbath break¬ 
ing, selling spirituous liquors on Sunday, and the disturbance of 
religious meetings, with many others. Swan’s Stat. 255, 256. Long 
acquiescence in these enactments goes far to show the construction 
which has been placed by all on the constitution, and that there may 
be many offenses, though decidedly immoral and mischievous in their 
tendencies, that are not crimes, but at most only quasi criminal. Of 
such, jurisdiction may be given to a justice of the peace or the mayor 
of an incorporated town: Markle v. Akron, 14 O. 586. 

Section 11 . That in all criminal prosecutions, the accused 
hath a right to be heard by himself and his counsel; to demand 
the nature and cause of the accusation against him, and to have 
a copy thereof; to meet the witnesses face to face; to have 
compulsory process for obtaining witnesses in his favor; and in 
prosecutions by indictment or presentment, a speedy public trial, 
by an impartial jury of the county or district in which the of¬ 
fense shall have been committed; and shall not be compelled 
to give evidence against himself, nor shall he be twice put in 
jeopardy for the same offense. {See Const. 1851, Art. I, § 10.) 

See Const. 1851, Art. I, § 10. 

No person in Ohio can be held to answer upon trial, for a crime, 
except it be by indictment or presentment by grand jury, and he has 
the right, by the same organic law, to demand the nature and cause 
of the accusation against him. He has the right to require such 
accusations to be embodied in a methodical and legal form, with time, 
place and circumstances, otherwise he will be unable to prepare his 
defense to resist the charge: Grummond v. State, 10 O. 510. 

On the trial of an indictment for a criminal offense, and at the 
return of the verdict, it is the right of the accused to be present, and, 
if prevented by imprisonment, or other improper means, he is entitled 
to a new trial: Rose v. State, 20 O. 31. 

In criminal cases, the verdict should be received in the presence 
of the prisoner, that he may have the jury polled: Sargent v. State 
11 O. 472. 

After the jury is impaneled and sworn, if a nolle prosequi be 
entered by the prosecuting attorney, with leave of the court, and with¬ 
out the consent of the prisoner, it is a good bar to another indictment 
for the same crime: Mounts v. State, 14 O. 295. 

A judgment on the verdict of conviction or acquittal is not neces¬ 
sary in order that either may constitute a bar to another indictment 
for the same offense: Mounts v. State, 14 O. 295. 

“Thus careful has been the constitution to secure the pure and 
impartial administration of criminal justice, and to guard the accused 
from the possibility of oppression and wrong, under the forms of a 
criminal prosecution. It is his right to have a public trial; that he 
shall meet the witnesses face to face before the public, and that all 
that can be said or preferred against him, and all that can be said or 
urged in his favor, shall be in the hearing and presence of the public 
The witnesses shall give their testimony in public, and the court shall 
declare the law in public, and the jury are sworn to render their 
verdict according to the law and the evidence thus publicly given. 



99 


CONSTITUTION OP THE STATE OP OHIO OP 1802 . 


In no other way can the jury be advised of a fact or principle of law 
touching the case of the accused. It is his right thus to have every¬ 
body know for what he is tried and why he is condemned, and to 
witness the manner, tone and temper of his prosecution; that he may 
be subjected to no other influence than truth and law, and that mercy 
which construes every doubt to his benefit. The court charged with 
his trial have no right to hold any communication with the jury 
touching his case, except in the presence of the prisoner, and before 
the public. The court can not secretly communicate to the jury what 
they have said respecting the law of the case. It is the right of the 
accused to know and have the public know that the court communicate 
no new principle of law which had not been before publicly declared, 
nor is he at all bound to trust to the court or judge in this matter. 
It is his great privilege, and no power can impair it. What a complete 
prostration, then, is it of the constitutional rights of the accused that 
a single judge, during the temporary adjournment of the court, should 
go to the jury room to explain to them what had been the charge of 
the court! It is not claimed that this judge acted from any other 
motive than a mistaken notion of duty. But this fact in no sense 
impairs the rights of the accused”: Kirk v. State, 14 O. 511. 

It is not error to omit giving notice to the prisoner’s counsel, 
that he may be present when the verdict is to be delivered by the 
jury: Sutcliffe v. State, 18 O. 469. 

If the accused has been found guilty and judgment has been ren¬ 
dered against him, and subsequently such judgment has been reversed 
in error proceedings brought by the accused, this constitutional pro¬ 
vision does not prevent the accused from being put on trial a second 
time before a jury: Sutcliffe v. State, 18 O. 469. 

Upon a plea of auterfois acquit, the true test to determine whether 
the accused has been put in jeopardy for the same offense is, whether 
the facts alleged in the second indictment, if proven to be true, would 
have warranted a conviction on the first indictment: Price v. State, 
19 O. 423. 

The accused can not enjoy the privileges granted to him in § 11, 
Art. VIII, of the constitution of 1802, unless present in court during 
his trial, so he may be said to have a constitutional right to be 
present: Rose v. State, 20 O. 31. 

The W'ord “district” in this section could not mean “judicial dis¬ 
trict,” as the term is employed in Art. I, § 10, of the constitution of 
1851, since such judicial districts were unknown under the constitu¬ 
tional district of 1802: State, ex rel., v. McCarty, 52 O. S. 363. 

In a capital case, where the jury state they can not agree, the 
court may, in their discretion, discharge them, remand the prisoner 
for another trial and continue the case: Hurley v. State, 6 O. 399. 

Plea to auterfois acquit must set forth not only the verdict of the 
jury, in the former trial, but a judgment thereon, or it is bad: Hurley 
V. State, 6 O. 399. 


Section 12. That all persons shall be bailable by sufficient 
sureties, unless for capital offenses, where the proof is evident 
or the presumption great; and the privilege of the writ of 
habeas corpus shall not be suspended, unless, when in case of 
rebellion or invasion, the public safety may require it. (See 
Const. 1851, Art. I, §§ 8, 9.) 

See Const. 1851, Art. I, §§ 8 and 9. 

The constitution confers sufficient power to authorize the legis¬ 
lature, by statute, to permit bail as well after as before conviction: 
State V. Clark, 15 O. 596. 

If the evidence exhibited on the hearing of the application be of 
so w'eak a character that it w'ould not sustain a verdict of guilty 
against a motion for a new trial, the court will admit to bail: State v. 
Summons, 19 O. 139. 

The court will not, as a matter of course, admit to bail because the 
jury in a trial for murder has not agreed upon a verdict. If the 
evidence exhibited on the hearing of the application be of so weak a 
character that it would not sustain a verdict of guilty against a mo¬ 
tion for a new trial, the court will admit to bail: State v. Summons, 
19 O. 139. 

“The inquiry naturally speaks upon ’Who is to decide whether 
the proof be evident or the presumption great?’ Most undoubtedly 
the same authority which prescribes the amount of bail and passes 
upon the sufficiency of the sureties, the judges of the court who exer¬ 
cise this same power in all analogous cases known to our laws”: 
State V. Summons, 19 O. 139. 


Art.VIII, § 12. 


Bailable offenses; 
of the writ of 
habeas corpus. 




100 


Art.VIII, § 13. 


Of bail, fine, and 
punishment. 


Punishment to be 
proportioned to 
offense. 


Of insolvent 
debtors. 


Laws; ex post 
facto; relative to 
contracts; for¬ 
feiture of estate, 

etc. 


CONSTITUTION OP THE STATE OF OHIO OF ISO^Z. 


Section 13. Excessive bail shall not be required; exces¬ 
sive fines shall not be imposed; nor cruel and unusual punish¬ 
ments inflicted. (See Const. 1851, Art. I, § 9.) 

See Const. 1851, Art. I, § 9. 

Section 14. All penalties shall be proportioned to the 
nature of the offence. No wise legislature will afifix the same 
punishment to the crimes of theft, forgery and the like, which 
they do to those of murder and treason. When the same un¬ 
distinguished severity is exerted against all offences, the people 
are led to forget the real distinction in the crimes themselves, 
and to commit the most flagrant, with as little compunction as 
they do the slightest offenses. For the same reasons, a mul¬ 
titude of sanguinary laws are both impolitic and unjust: the true 
design of all punishments being to reform, not to exterminate 
mankind. 

Section 15. The person of a debtor, where there is not 
strong presumption of fraud, shall not be continued in prison, 
after delivering up his estate for the benefit of his creditor or 
creditors, in such manner as shall be prescribed by law. (See 
Const. 1851, Art. I, § 15.) 

See Const. 1851, Art. I, § 15. 

Section 16. No ex post facto l^v, nor any law impair¬ 
ing the validity of contracts, shall eveh'be made; and no con¬ 
viction shall work corruption of blood, or forfeiture of estate. 
(See Const. 1851, Art. II, § 28.) 

See Const. 1851, Art. TI, § 28. 

I. Retroactive lavv.s. 

A. Curative. 

R. Declaratory. 

C. Law divesting' vested 
rights. 

II. Laiv.s impairing obligation 
of contracts. 

A. What constitutes con¬ 
tract. 

I. RETRO VCTIVF. LAWS. 

A. Curative. This section did not prevent retroactive laws which' 
violated no principle of natural justice, but on the contrary, were in 
furtherance of equity and good morals: Trustees v. McCaughy, 2 O. S. 
152 [citing and following Johnson v. Bentley, 16 O. 97; Lewis v. McEl- 
vain, 16 O. 347; Bartholemew v. Bentley, 1 O. S. 37; Kearny v. Buttles, 
1 O. S. 362]; see, also. Hays v. Armstrong, 7 O. (pt. 1) 248. 

Section 2 of the act passed January 29, 1833, amendatory of the act 
providing for the acknowledgment of deeds, etc., is constitutional and 
of binding force, notwithstanding its retrospective operation: Barton 
V. Morris, 15 O. 408. 

An act of confirmation which merely cures an informality in a 
certificate of a magistrate, which creates no new title and which 
affects no right, but which equitably passes from the grantor, and 
which accomplishes merely that which upon principles of natural 
justice a court of equity ought to decree, may have a retrospective 
operation if the legislature intended it to .give that effect. Accord¬ 
ingly, a statute which cured the failure of the notary to certify that 
he read or otherwise made known to a married woman the contents 
of a deed executed by her was held to be valid: Chestnut v. Shane, 
16 O. 599 [overruling Connell v. Connell. 6 O. 353; Good v. Zercher, 
12 O. 364; Meddock v. Williams, 12 O. 377; Silliman v. Cummings, 13 
O. 116]. 

R. Declaratory. A so-called declaratory statute which in fact 
changes the law, but purports merely to explain the meaning of a 
previous statute, is unconstitutional as to cases which arose after the 
original statute was passed and before the so-called declaratory 
statute was passed: Aurora Borealis \ Dobbie, 17 O. 125. 


R. Specific illustrations. 

1. Taxation. 

2. Remedies. 

3. Insolvency laws. 
C. Effect. 

III. Corruption of blood. 

IV. Forfeiture of estate. 



101 


CONSTITUTION OF THE STATE OP OHIO OP 1802 . Art.VIII, § 16. 


A statute which provided for contribution between cosureties and 
the like in cases where by mistake property had been seized on execu¬ 
tion, which was not liable to such execution, was held to be declara¬ 
tory merely, and to apply to pre-existing cases of action: Acheson v. 
Miller, 2 O. S. 203. 

C. Law divesting vested rights. A law which relates back so as 
to divest a person of rights which have already vested in him, is 
already constitutional: Steamboat Monarch v. Finley, 10 O. 384. 

A special statute, however, which authorizes the sale of an entailed 
estate was held to be valid in Carroll v. Olmstead, 16 O. 251. 

An assignment to a commissioner of insolvents in Ohio was held 
not to have any retroactive effect in Ennis v. Hulse, W. 259. 

II. L.AAVS IMPAIRING OBLIGATION OF CONTRACTS. 

A. AVhnt constitutes contract. The creation of a public corpora¬ 
tion for the purpose of government is not a contract: Marietta v. 
Fearing, 4 O. 427. 

The legislature has power to create or to abolish municipalities or 
public quasi corporations, or to enlarge or to restrict their powers: 
Marietta v. Fearing, 4 O. 427. 

A license to practice a profession is not a contract, does not confer 
any vested privilege and may be modified in such manner as the public 
welfare may require: State v. Gazley, 5 O. 15. 

The agreement between the United States and the state of Ohio 
by which the United States took the Cumberland road, was held to be 
a contract which prevented the state from subsequently charging toll 
upon passengers carried in mail coaches: Neil v. State, 44 U. S. (3 
How.) 720, 12 O. F. D. 739 [overruling State v. Neil, 7 O. (pt. 1) 132]. 

B. Specitie illustrations. 

1. Taxation. In 1845 the legislature passed a general banking 
law, the fifty-ninth section of which required the officers to make 
semiannual dividends, and the sixtieth required them to set off six 
per cent, of such dividends for the use of the state, which sum or 
amount so set off should be in lieu of all taxes to which the company, 
or the stockholders therein would otherwise be subject. On March 21, 
1851, an act was passed, entitled “An act to tax banks, and bank and 
other stocks, the same as property is now taxable by the laws of this 
state.” The operation of this law being to increase the tax, the 
question arose whether the latter act, as far as it applied to banks 
organized under the act of 1845, was an act impairing the obligation 
of a contract, and in contravention of the tenth section of the first 
article of the constitution of the United States. In a series of de¬ 
cisions it was held by the supreme court of Ohio, that such charters 
were not contracts: Mechanics and Traders Bank v. Debolt, 1 O. S. 
591; Toledo Bank v. Bond, 1 O. S. 622; Knoup v. Bank, 1 O. S. 603; 
Sandusky City Bank v. Wilbor, 7 O. S. 481; Skelly v. .lefferson Branch 
Bank, 9 O. S. 606. But the supreme court of the United States reversed 
those decisions in the cases of Piqua Branch Bank v. Knoop, 16 How. 
369; Dodge v. Woolsey, 18 How. 331; Mechanics and Traders Bank v. 
Debolt, 18 How. 380; Jefferson Branch Bank v. Skelly, 1 Black, 436, 
holding that the charters of the banks were contracts fixing the 
amount of taxation, and not a law prescribing a rule of taxation until 
changed by the legislature, and that therefore the act of 1851 was 
unconstitutional. 

A statute which exempted certain land of the Ohio university from 
taxation was not a contract; and the subsequent statute providing for 
the taxation of such land after it was sold did not impair the obli¬ 
gation of any contract: Armstrong v. Athens Co., 10 O. 235. 

The. 26th section of the act amendatory of the tax law, which taxes 
rents reserved in leases for a term of fourteen years or upwards, 
renewable and chargeable upon real property, which rents are to be 
assessed to the person entitled to receive the same, as personal prop¬ 
erty, at a principal sum, the interest of which, at the legal rate per 
annum, shall produce a sum equal to such annual rents, is constitu¬ 
tional: Boring v. State, 16 O. 590. 

Where the state, by an act incorporating the Ohio university, 
vested in that institution two townships of land for the support of 
the university and instruction of youth, and in the same act authorized 
the university to lease said lands for ninety-nine years, renew'^able 
forever, and provided that lands thus to be leased should forever 
thereafter be exempt from all state taxes. It was held that the accept¬ 
ance of such leases at a fixed rent or rate of purchase by the lessees 
constitutes a binding contract between the state and the lessees. A 
subsequent act of the legislature, levying a state tax on such lands, 
is a “law impairinig the obligation of contracts,” within the purview 
of the tenth section of the first article of the constitution of the 
United States, and is therefore, pro tanto, null and void: Matheny v. 
Golden, 5 O. S. 361. 




102 


Art.VIII, § 16. CONSTITUTION OP TUB STATE OP OHIO OP 1802 . 


il. llemedies. The act of 1838 to abolish imprisonment for debt 
operates to discharge a debtor confined on the prison limits before the 
act took effect. The act affects the remedy, not the contract: Parker 
V. Sterling, 10 O. 357; see, also, Towsey v. Avery, 11 O. 90. 

A statute which provided that a judgment should cease to be a 
lien upon realty unless execution was issued in a year was valid and 
constitutional as applied to judgments recovered before the passage of 
such statute, as well as to judgments recovered thereafter: McCor¬ 
mick V. Alexander, 2 O. 65; see, also, Waymire v. Staley, 3 O. 366. 

Such statute did not affect levies which had already been made 
and were in force: Corwin v. Benham, 2 O. S. 36. 

A statute which cured defects in appeal bonds applied to cases 
pending when the statute was in action: Hays v. Armstrong, 7 O. 
(pt. 1) 247. 

A statute which provided that a judgment in favor of a bank 
might be discharged by payment of notes of such bank was valid: 
Bank v. Domigan, 12 O. 220. 

A statute which gave contribution between cosureties or persons 
who were joint parties to a judgment where a property had been levied 
on in satisfaction of a judgment without right to levy thereon was held 
to be valid: Acheson v. Miller, 2 O. S. 203. 

The act of March 5, 1842 (2 Curwen, 880), regulating the mode of 
collecting debts against turnpike companies, in which the state is a 
party, was held not to be a law impairing the obligations of a con¬ 
tract, and was therefore held to be constitutional: State v. Turnpike 
Co., 14 O. 405. 

3. Insolvency laws. A discharge of a debt between two citizens 
of the same state, under the insolvent laws of the state, when the 
debt was contracted after the laws were enacted, is a good defense to 
an action on the judgment brought in Ohio: Bank v. Card, 7 O. (pt. 2) 
170. 

Insolvent laws constitute a part of the law of the contract, and 
where a discharge has been obtained in the state w'hen the contract 
was to be performed, it is a complete bar to any subsequent suit: 
Bank v. Card, 7 O. (pt. 2) 170; see, to same effect. Smith v. Parsons, 
1 O. 236. 

Article VIII, § 16, of the bill of rights of the state of Ohio, pro¬ 
hibits making any law impairing the obligation of contracts: Shaver 
V. The Pennsylvania Co., 71 Fed. 931, 9 O. F. D. 221; see, to same effect, 
Johnson v. Bentley, 16 O. 97. 

The statute of 1824, providing "that no judgment heretofore ren¬ 
dered, or which hereafter may be rendered, on which execution shall 
not have been taken out and levied before the expiration of one year 
after the rendition of such judgment, shall operate as a lien on the 
estate of any debtor, to the prejudice of any other bona fide judgment 
creditor,” did not affect levies theretofore made and then in full force: 
Corwin v. Benham, 2 O. S. 36. 

If an amendment was construed to mean that the stockholder was 
liable only for such debts as have matured and upon which suits could 
be at once brought before the stock was transferred, it would be void 
as obnoxious to Art. VIII, § 16, of the constitution of 1802: Scofield 
V. Oil Co., 6 O. C. C. (N.S.) 169, 17 O. C. D. 347 [aflirmed, without 
report, Cobb v. Scofield, 74 O. S. 513]. 

C. Effect. Retroactive laws or laws other than curative laws or 
laws modifying remedies, are invalid: Smith v. Parsons, 1 O. 236. 

III. CORRUPTION OP BLOOD. 

In England, the conviction of many offenses works "corruption of 
blood and forfeiture of estate.” The forfeiture is to the king. The 
blood is corrupted. The attainted person can neither inherit from 
his ancestors nor can he transmit inheritance. His property is not given 
to his heirs, but, by the forfeiture, is taken from them. The effects 
of the crime of the father are thus visited upon his children. It was 
against such a state of things that the convention intended‘to provide 
A man sentenced to imprisonment for life in the penitentiary, in pun¬ 
ishment for crime, is not civilly dead, and letters of administration 
can not be granted on his estate: Frazer v. Fulcher, 17 O. 260. 


IV. FORFEITURE OF ESTATE. 

This provision does not render invalid a statute which provides 
for the forfeiture of estates for nonpayment of taxes. It applies only 
to forfeiture which is incident to a conviction of a crime: McMillan 

V. Robbins, 5 O. 28. 



103 


CONSTITUTION OF THE STATE OF OHIO OF 1802 . 


Section 17. That no person shall be liable to be trans¬ 
ported out of this state, for any offence committed within the 
state. {See Const. 1851, Art. I, § 12.) 

See Const. 1851, Art. I, § 12. 


Section 18. That a frequent recurrence to the funda¬ 
mental principles of civil government, is absolutely necessary to 
preserve the blessings of liberty. 

Section 19. That the people have a right to assemble to¬ 
gether, in a peaceable manner, to consult for their common good, 
to instruct their representatives, and to apply to the legislature 
for a redress of grievances. {See Const. 1851, Art. I, § 3.) 

See Const. 1851, Art. I, § 3. 

Cited: Bank v. Knoop, 57 U. S. (16 How.) 369, 3* O. F. D. 133. 


Section 20 . That the people have a right to bear arms 
for the defence of themselves and the state; and as standing 
armies in time of peace, are dangerous to liberty, they shall 
not be kept up; and that the military shall be kept under strict 
subordination to the civil power. {See Const. 1851, Art. I, § 4.) 

See Const. 1851, Art. I, § 4. 

It is contempt of court to muster and examine a militia company, 
with martial music, so near the court as to disturb its proceedings: 
State V. Goff, W. 78. 

Where a body of militia performs their evolutions with martial 
music and firing so near the courthouse as to interrupt or suspend the 
business of the court, the officers are liable for contempt, if they refuse 
to desist on request: State v. Coulter, W. 421. 

The military is a branch of the executive, and not a distinct de¬ 
partment of government: State v. Coulter, W. 421. 


Section 21. That no person in this state, except such as 
are employed in the army or navy of the United States, or 
militia in actual service, shall be subject to corporal punishment 
under the military law. 

Section 22. That no soldier, in time of peace, be quar¬ 
tered in any house without the consent of the owner; nor in 
time of war, but in the manner preg..:ribed by law. {See Const. 
1851, Art. I, § 13.) 

See Const. 1851, Art. I, § 13. 


Section 23. That the levying taxes by the poll is griev¬ 
ous and oppressive; therefore, the legislature shall never levy 
a poll ^ax for county or state purposes. {See Const. 1851, Art. 
XII, § I.) 

See Const. 1851, Art. XII, § 1. 

A tax assessed upon the members of a profession, upon account 
of their practice, is constitutional, being not a poll but a faculty tax, 
and may be legally assessed by the judicial tribunals: State v. Gazlay, 
5 0. 14; State v. Hibbard, 3 O. 63. 

A city ordinance which imposes a reasonable charge upon draymen 
by way of excise upon their special employment was held to be valid: 
Cincinnati v. Bryson, 15 O. 625. 

A city ordinance imposing a charge of twenty-five cents upon 
persons who occupied stalls in a market place was held to be valid and 
enforceable: Cincinnati v. Buckingham, 10 O. 257. 


Art.VIII, § 17 . 


Transportation 
for crimes. 


Of recurrence to 
the organic 
law. 


Of the right to 
assemble. 


Of bearing arms; 
standing armies; 
subordination of 
military power. 


Corporal punish¬ 
ment under mil¬ 
itary law. 


Of quartering 
troops 


Of poll tax. 



104 


Art.VIII, § 24. 


Hereditary priv¬ 
ileges, etc. 


Of schools and 
poor children. 


Disposition of 
proceeds of sec¬ 
tion 29. 


Incorporation of 
literary societies. 


CONSTITUTION OF THE STATE OF OHIO OF 1802 . 


Section 24. That no hereditary emoluments, privileges 
or honors, shall ever be granted or conferred by this state. 
(See Const. 1851, Art. I, § 17.) 

See Const. 1851, Art. 1, § 17. 

The bill of rights in the constitution of Ohio, under which the law 
in controversy was enacted, contained the following restriction: “that 
no hereditary emoluments, privileges or honors shall ever be granted 
or conferred by this state.” It would be difficult to conceive how 
offices, franchises and immunities could be conferred as incorporeal 
hereditaments, or privileges or estates capable of being hereditary, 
without a conflict with the constitution: Bank v. Bond, 1 O. S. 622; 
see, also, Insurance Co. v. Debolt, 57 U. S. (16 How.) 416, 3 O. F. D. 170. 


Section 25. That no law shall be passed to prevent the 
poor in the several counties and townships within this state from 
an equal participation in the schools, academies, colleges and 
universities within this state, which are endowed, in whole or 
in part, from the revenue arising from donations made by the 
United States, for the support of schools and colleges; and the 
doors of the said schools, academies and universities, shall be 
open for the reception of scholars, students and teachers, of 
every grade, without any distinction or preference whatever, con¬ 
trary to the intent for which said donations were made. 

Cited and referred to: Shryock v. Railroad, 6 O. I.. R. 19, 53 Bull. 
86 (railroad commission); State v. McCann, 21 O. S. 198. 

A statute which provided for establishing separate schools for the 
education of colored children (Curwen, 1469; act of February 20, 1849), 
was held to be constitutional; and it was said to be a matter which 
was properly left to the general assembly as a part of its legislative 
functions; and as a matter of policy it was best to place the white 
youth and colored youth into separate schools and divide the school 
fund in proportion to their numbers: State v. Cincinnati, 19 O. 178. 


Section 26. That laws shall be passed by the legislature, 
which shall secure to each and every denomination of religious 
societies, in each surveyed township which now is, or may 
hereafter be formed in the state, an equal participation, ac¬ 
cording to their number of adherents, of the profits arising from 
the land granted by congress, for the support of religion, agree¬ 
ably to the ordinance or act of congress, making the appropri¬ 
ation. 

Under this section it was necessary that the sect which claims its 
proportion of the profits of such land should have formed itself into a 
society and given itself a name. It was not sufficient that they were 
individual members of such sect within the township, but it was not 
necessary that the individual members of such religious society should 
be citizens: State v. Delphi Township, 11 O. 24. 


Section 27. That every association of persons, when 
regularly formed, within this state, and having given themselves 
a name, may, on application to the legislature, be entitled to 
receive letters of incorporation, to enable them to hold estates, 
real and personal, for the support of their schools, academies, 
colleges, universities, and for other purposes. 

The constitution, by this provision, expressly authorized the grant¬ 
ing acts of incorporation, and prescribed the mode of doing it: Bank 
V. Bond, 1 O. S. 622. 

“I am not disposed to controvert that under this section of the 
constitution some of the franchises may be delegated to a private cor¬ 
poration or to an individual, but such delegations were never designed 
to confer, nor do they confer, any right of property in the corpora¬ 
tion or individual; they are made from public consideration alone, and 
the corporation or individual becomes only a trustee for the public 
benefit”: Knoup v. Bank, 1 O. S. 603. 



105 

CONSTITUTION OF THE STATE OF OHIO OF 1802 . 


Section 28.^ To guard against the transgression of the 
high powers, which we have delegated, we declare, that all 
powers, not hereby delegated, remain with the people. (See 
Const. 1851, Art. I, § 20.) 

See Const. 1852, Art. I, § 20. 

This section contains an important provision which it is the right 
of every citizen to invoke, and the duty of judicial tribunals to guard 
with scrupulous fidelity. It guards against the exercise of powers not 
delegated to any department of the government. The powers dele¬ 
gated to separate departments are legislative, executive and judicial, 
without any attempt at specific enumeration. Each department can 
exercise such power, and such only as falls within the scope of the 
express delegation: Scovill v. Cleveland, 1 O. S. 126. 

The people have by this section granted certain powers, to be 
exercised for their benefit, until they see fit to resume them and have 
retained others. The general assembly, like the other departments of 
government, exercise only delegated authority, and it can not be 
doubted that an act passed by it, not falling fairly within the scope 
of legislative power, is as clearly void as though expressly prohibited: 
Railroad v. Commissioners, 1 O. S. 77. 

The government created by the constitution of Ohio of 1892, 
although not enumerated, is one of limited powers. It is true, the 
grant to the general assembly of “legislative authority” is general; 
but its exercise within that limit is necessarily restrained by the 
previous grant of certain powers to the federal government, and by 
the express limitations to be found in other parts of the constitution. 
Outside of that boundary it needed no express limitation, for nothing 
was granted. When, therefore, the exercise of any power by that 
body is questioned, its validity must be determined by the nature of 
the power, connected with the manner and purpose of its exercise: 
Bank v. Knoop, 57 U. S. (16 How.) 369, 3 O. P. D. 133. 


SCHEDULE. 

Section 1. That no evils or inconveniences may arise, 
from the change of a territorial government to a permanent 
state government, it is declared by this convention, that all 
rights, suits, actions, prosecutions, claims and contracts, both 
as it respects individuals and bodies corporate, shall continue, as 
if no change had taken place in this government. (See Const. 
1851, Sched. § i.) 

See Const. 1851, Schedule, § 1. 

Section 2. All fines, penalties and forfeitures, due and 
owing to the territory of the United States, north-west of the 
river Ohio, shall inure to the use of the state. All bonds ex¬ 
ecuted to the governor, or any other officer in his official capacity, 
in the territory, shall pass over to the governor or the other 
officers of the state, and their successors in office, for the use of 
the state, or by him or them to be respectively assigned over to 
the use of those concerned, as the case may be. 

Section 3. The governor, secretary and judges, and all 
other officers under the territorial government, shall continue in 
the exercise of the duties of their respective departments, until 
the said officers are superseded under the authority of this con¬ 
stitution. (See Const. 1851, Sched. § 10.) 

See Const. 1851, Schedule, § 10. 

Section 4. All laws, and parts of laws, now in force in 
this territory, not inconsistent with this constitution, shall con¬ 
tinue and remain in full effect, until repealed by the legislature, 
except so much of the act, entitled “an act regulating the ad¬ 
mission and practice of attorneys and counselors at law,” and 


Art.VIII, § 28. 


Powers reserved 
to the people. 


Of former suits 
and claims. 


Of former fines 
and official bonds. 


Of former of¬ 
ficers. 


Of prior laws. 





§ 5 . 


106 

CONSTITUTION OF THE STATE OP OHIO OP 1802 . 


Temporary state 
seal. 


The first election. 


The first appor¬ 
tionment of rep¬ 
resentation. 


of the act made amendatory thereto, as relates to the term of 
time which the applicant shall have studied law, his residence 
within the territory, and the term of time which he shall have 
practiced as an attorney at law, before he can be admitted to 
the degree of a counselor at law. (See Const. 1851, Sclied. §1.) 

See Const. 1851, Schedule, § 1. 

Section 5 . The governor of the state shall make use of 
his private seal, until a state seal be procured. 

Section 6 . The president of the convention shall issue 
writs of election to the sheriffs of the several counties, requir¬ 
ing them to proceed to the election of a governor, members of 
the general assembly, sheriffs and coroners, at the respective 
election districts in each county, on the second Tuesday of Jan¬ 
uary next; which election shall be conducted in the manner 
prescribed by the existing election laws of this territory: and the 
members of the general assembly, then elected, shall continue to 
exercise the duties of their respective offices until the next an¬ 
nual or biennial election thereafter, as prescribed in this con¬ 
stitution, and no longer. 


Section 7 . Until the first enumeration shall be made, 
as directed in the second section of the first article of this con¬ 
stitution, the county of Hamilton shall be entitled to four sen¬ 
ators and eight representatives; the county of Clermont, one 
senator and two representatives; the county of Adams, one 
senator and three representatives; the county of Ross, two sen¬ 
ators and four representatives; the county of Fairfield, one 
senator and two representatives; the county of Washington, 
two senators and three representatives; the county of Belmont, 
one senator and two representatives; the county of Jefferson, 
two senators and four representatives; and the county of Trum¬ 
bull, one senator and two representatives. 

Done in convention, at Chillicothe, the twenty-ninth day of 
November, in the year of our Lord one thousand eight hundred 
and two, and of the independence of the United States of 
America, the twenty-seventh. 

In testimony whereof, we have hereunto subscribed our 
names. 


EDWARD TIFFIN, President, 

and representative from the county of Ross. 


Joseph Darlington, 
Israel Donalson, 
Thomas Kirker, 

James Caldwell, 
Elijah Woods, 

Philip Catch, 

James Sargent, 

Henry Abrams, 
Emanuel Carpenter, 


I Adams county. 

Belmont county. 
Clermont county. 
Fairfield county. 




107 

CONSTITUTION OF THE STATE OF OHIO OF 1802. 


§ 7 . 


John W. Browne, 
Charles Willing Byrd, 
Francis Dunlavy, 
William Goforth, 

John Kitchel, 
Jeremiah Morrow, 
John Paul, 

John Reily, 

John Smith, 

John Wilson, 

Rudolph Bair, 

George Humphrey, 
John Milligan, 
Nathan Updegraff, 
Bazaleel Wells, 

Michael Baldwin, 
James Grubb, 
Nathaniel Massie, 
Thomas Worthington, 

David Abbott, 

Samuel Huntington, 


^ Hamilton county. 

j 

1 

1 

y Jefferson county. 

J 

I 

Ross county. 

J 

\ Trumbull county. 


Ephraim Cutler, 
Benjamin Ives Gilman, 
John McIntyre, 

Rufus Putnam, 


1 

!" Washington county, 

j 


Attest: 

Thomas Scott, Secretarv. 




Index to the Constitution of Ohio, 1802 


Adjournment — Art. Sec. 

Of house or senate. 1 16 

Each house to sit upon its own. 1 8 

Amendment — 

To laws . 1 16 

To constitution . 7 6 


Appellate Jurisdiction — 

Supreme court . S 2 

Apportionment — 

First . Sched. 7 

For members of legislature. 1 2 

“ » Sched. 7 

“ “ . 1 6 

Made every four years. 1 2 

In manner prescribed by law. 1 2 

“ . 1 6 

Representatives, how . 1 2 

Senators, how . 1 6 


Appropriation — 

Of money . 1 21 

Of property . 8 4 

Armies — 

Standing, dangerous . 8 20 

Arms — 

Right to bear . 8 20 

Arrest — 

Members of legislature exempt. 1 18 

Electors exempt . 4 3 


Articles — 

1st, subiect of, legislative. 

2d, subiect of. ex^ciitive. 

3d, subiect of, indicial. 

4th, subiect of. el^'r^ive franchise... 

6th, subiect of. mdFia officers. 

6th, subject of. civil officers . 

7th, subiect of. mi<5Cellaneous . 

8th, subject of. bill of rights. 

* Schedule, subject of, miscellaneous 


Assemble — 

People have right to. 8 19 

Auditor of State — 

How appointed . 6 2 

Term of office. 6 2 

Bail — 

Excessive, not required. 8 13 

Bailable — 

Who are . 8 12 

Bill of Rights — 

See Rights . 8 

Bills, Legislative — 

May originate in either house. 1 16 

May be amended, etc. 1 16 

Read on three different days, unless. 1 17 

Signed by presiding officers. 1 17 

Style of . 1 IB 

Blood — 

Corruption . 8 16 

Boundaries of State . 7 6 

Bonds — 

Of territory, disposition of. Sched. 2 

Census — 

Of state, how ascertained. 1 t 

When first taken . 1 2 


108 




















































INDEX TO THE CONSTITUTION OP OHIO, 1802. 


109 


Chillicothe — Art, Sec. 

Seat of government, until. 7 4 

Citizen — 

Who may vote. 4 1 

Clerks of Courts— * 

How appointed . 3 9 

Qualifications . 3 9 

Removal . 3 9 

Commissions — 

How issued . 3 16 

Common Pleas Courts — 

Of what to consist. 3 3 

Three circuits in state. 3 3 

Legislature may increase. 3 3 

Terms of court . 3 10 

Jurisdiction — 

civil . 3 3 

criminal . 3 4 

probate and testamentary. 3 6 

certiorari . 3 6 

Judges — 

a president of each circuit. 3 3 

associate . 3 3 

how appointed . 3 8 

term of office. 3 8 

salary . 3 8 

hold no other office. 3 8 

to appoint clerk. 3 9 

conservators of peace. 3 7 

Compensation — 

Governor . 1 19 

“ . 2 6 

Other officers . 1 19 

To owner of private property . 8 4 

Congress — 

Member ineligible to be governor. 2 13 

Conscience — 

Rights of . 8 3 

Constitution — 

Oath to support. 7 1 

Amendment, how made. 7 5 

Contracts — 

Obligation of, not to be impaired. 8 16 

Convention — 

To amend constitution . 7 6 

Conviction — 

Not to corrupt blood. 8 16 

Nor forfeit estate . 8 16 

Corporal Punishment — 

No person subject to. 8 21 

Corruption of Blood — 

No conviction shall work. 8 16 

Counsel — 

Person accused of crime may have. 8 11 

Counties — 

Officers of . 6 1 

“ 1 27 

New . 7 3 

Representation therein . 7 3 

Number of associate judges in. 3 3 

Courts — 

See Common Pleas Courts. 

See Supreme Courts. 

See Courts of Probate. 

Redress in . 8 7 

Ever open . 8 7 

Each appoint own clerk. 3 9 

Time of holding. 3 10 


Capital, when not bailable. 8 12 

Tried upon indictment. 8 10 

Accused, his privilege. 8 H 

Not twice in jeopardy for same. 8 11 

Nor be transported for. 8 17 






















































no 


INDEX TO THE CONSTITUTION OF OHIO, 1802 


Dibate — Art. Sec, 

Liberty of protected. 1 13 

Delinquents — 

Not eligible to seat in legislature. 1 28 

Districts — ’ 

See Apportionment. 

For representatives . 1 2 

Judicial — 

state divided into three. 3 S 


Education — 

Poor shall attend schools. 8 26 

Election — 

Who may vote. 4 1 

** ** 4 6 

Shall be by ballot. 4 2 

Voters privileged from arrest. 4 8 

Forfeiture of franchise. 4 4 

Bribery at . 7 2 

First election . Sched. 6 

For governor, how contested. 2 2 

Electors — 

Who are . 4 1 

“ “ 4 6 

Privilege . 4 3 

Who may not be. 4 4 

Embezzlement — 

When disqualifies for office. 1 28 

Emoluments — 

Hereditary never granted . 8 24 

Estate — 

Not forfeited for crime. *8 16 


Executive Power — 

Vested in governor. 2 

Ex Post Facto Laws — 

Shall not be made. 8 


Fines — 

Former to enure to state. 

Excessive not imposed. 

Forfeiture of Estate — 

No conviction shall work. 

General Assembly — 

Consist of senate and house. 

Members elected by people. 

g ualifications of members. 

epresentatives chosen annually.. 

Senators chosen biennially. 

When session to be held. 

Who ineligible as candidates. 

When governor to convene. 

When governor to adjourn. 

Defaulter ineligible . 

Impeachment — 

house sole power of. 

senate to try. 

to be under oath._. 

two-thirds to convict. 

Powers and duties — 
to judge of qualifications of members 

choose their officers. 

determine their rules. 

compelling attendance . 

expelling members . 

to have census, when taken. 

may punish members . 

to add judge to supreme court. 

to keep journals. 

enter yeas and nays.. 

proceedings public . 

two-thirds a quorum. 

two members may protest. 

are privileged from arrest. 

adjournment . 

adjournment . 

bills passing . 

laws impairing contracts. 

new counties . 

may punish contempts. 

ex post facto laws. 

Tacancies, how filled. 


Sched. 

8 


8 


1 

1 

1 

1 

1 

1 

1 

2 

2 

1 

1 

1 

1 

1 

1 

1 

1 

1 

1 

1 

1 

3 

1 

1 

1 

1 

1 

1 

1 

1 

1 

8 

7 
1 

8 
1 


1 


16 


2 

13 


18 


1 

1 

4 

3 

6 

25 

26 

9 
11 
28 

23 

23 

23 

23 

8 

8 

11 

8 

11 

2 

11 

2 

9 

9 

16 

8 

10 

13 
8 

16 

16 

16 

3 

14 
16 
18 
































































INDEX TO THE CONSTITUTION OP OHIO, 1802. 


Ill 


Governor — 

Elected biennially . 

Who eligible . 

For what period . 

Who ineligible . 

How elected . 

Election, how contested . 

Liable to impeachment. 

Vacancy, how filled. 

Powers and duties — 

to recommend measures . 

grant reprieves . 

convene general assembly, when... 

fill vacancies in the legislature. 

adjourn general assembly, when.... 

keep seal . 

see laws executed . 

sign grants and commissions. 

supreme executive power vested in 

use private seal, until. 

compensation . 

require information . 

commander-in-chief of militia. 

Government — 

Right to alter, etc. 

Change of, not to affect rights, etc... 
Frequent recurrence to principles.... 

Grants — 

How issued . 

Habeas Corpus — 

Writ of, not suspended, unless. 

Happiness — 

Right to pursue and obtain. 

Hereditary Honors — 

Never granted . 

House of Representatives — 

See General Assembly. 

Impeachment — 

House has sole power of. 

Majority must concur in. 

To be tried by senate. 

Under oath ... 

Two-thirds to convict. 

What officers subject to. 

Penalty of . 

Imprisonment — 

By legislature for contempt. 

For debt, not allowed, unless. 

Indentures — 

No person of age, held under. 

Indictments — 

How they shall conclude. 

Officers liable to . 

Accused, right to copy. 

Insolvent Debtor — 

Not imprisoned unless. 

Instructions — 

To representatives by people . 

Inviolate — 

Jury trial . 

Private property . 

Jeopardy — , _ 

Not twice in, for same offense. 

Journal — , . . 

In each house to be kept. 

To be published . 

Yeas and nays entered on. 

Protest entered on. 

Judicial Power — 

Vested in supreme court. 

Courts of common pleas. 

Justices of the peace. 

Such others as laws may make. 


Art, 

2 

2 

2 

2 

2 

2 

1 

2 

2 

2 

2 

1 

2 

2 

2 

2 

2 

Sched, 

2 

2 

2 


8 

Sched. 

8 


2 


8 


8 


8 


1 

1 

1 

1 

1 

1 

1 


1 

8 


8 


3 

1 

8 


8 


8 


8 

8 


8 


1 

1 

1 

1 


3 

3 

3 

3 


Sec. 

3 

3 

3 

13 
2 
2 

24 

12 

4 
6 
9 

12 

11 

14 
7 

15 
1 

5 

6 
7 

10 


1 

1 

18 


15 


12 

1 

24 


23 

23 

23 

23 

23 

24 
24 


14 

15 


2 


12 

24 

11 


16 


19 


8 

4 


11 


9 

9 

9 

10 


1 

1 

1 

1 

























































]12 


INDEX TO THE CONSTITUTION OP OHIO, 1802. 


Jurisdiction — 

Of supreme court. 

*4 44 

Of common pleas. 

Justices of peace regulated by law. 

Jury Trial — 

Shall be inviolate . 

Person accused of crime, right to. 

In libel cases, judges law and fact. 

Justice — 

Administered without delay. 

Justices of the Peace — 

Number and duties. 

Term of office. 

Judges — 

Number of supreme. 

Number of common pleas. 

Jurisdiction . 

Conservators of peace. 

How appointed . 

Term of office.,. 

Salaries .». 

Not to hold any other office. 

Laws — 

Suspension of . 

Style of . 

Ex post facto, not to be passed. 

Effect of adoption of constitution upon 
Sanguinary, impolitic . 

Legislative Authority — 

Where vested . 


Art. Sec. 
3 i 

3 4 

3 3-6 

3 11 


8 8 
8 11 
8 6 


8 7 


3 11 

3 11 


3 * 
3 3 
3 4-6 
3 7 
3 8 
3 8 
3 8 
3 8 


8 9 

1 18 

8 16 

Sched. 4 

8 14 


1 1 


Libel — 

Truth may be given in evidence. 

I 

Liberty — 

Of speech and press. 

Right to defend. 


Life — 

Right to enjoy and defend 

Literary Societie.s — 

Incorporation of . 

Members of Congress — 

Not to be governor . 

Members of Convention — 

Names . 


Members of General Assembly — 

May protest .. 

Exempt from arrest . 

Military — 

Subordinate to civil power.., 
Militia — 

How officers elected... 

Governor, commander-in-chief 


Money — 

Receipts to be published. 

How drawn from treasury. 

For public buildings. 

New Counties — 

See Counties. 

Oaths — 

To be taken by officers. 

What to contain . 

Senate to take, in impeachment 

Offense«- 

See Crimes. 


8 • 


8 f 

8 1 


8 1 


8 t1 


2 18 


1 10 
1 18 


8 20 


6 

2 10 


1 22 

1 21 

7 4 


7 1 

7 1 

1 28 


Office — 


No religious test required for. 


• 

Disqualihcations for . 


O 



dt\j 

4< 


Oft 

Who eligible for county.. 


27 


















































INDEX TO THE CONSTITUTION OP OHIO, 1802 . 


113 


Officers — 

Of militia, how elected. 

County .:. 

Oath of . 

May be indicted . 

May be impeached . 

Governor to require information of. 

Not affected by constitution. 

State treasurer and auditor. 

Town and township .. 

Appointments not directed, how controlled. 
Of territory to continue. 

Pardons — 

Allowed by governor. 

People — 

Powers not delegated, remain with. 

May change the government. 

May assemble to consult. 

Right to bear arms. 

May instruct representatives. 

Rights protected . 

See Rights. 

Penalties — 

Proportioned to offense . 

Perquisites — 

None allowed to judges. 

Poll Tax — * 

Not levied . 

Population — 

See Census. 

Powers — 

Not delegated, remain with people . 

Press — 

Liberty of . 

Prior Laws — 

Shall continue, except . 

Prisoners — 

How treated . 

Rights — 

to be heard . 

to demand nature of charge . 

meet witnesses . 

have compulsory process for. 

speedy public trial . 

of trial by jury.. 

Not compelled to testify. 

Not twice put in jeopardy. 

Private Property — 

Inviolable . 

Privileges — 

Of persons . 

Hereditary, not granted . 

Probate Matters — 

Jurisdiction in common pleas. 

Process — 

Style of . 

Property — 

Private, inviolable .. 

Subservient to public use. 

To be paid for, when. 

Right to acquire, etc. 

Prosecution — 

Carried on in name of state. 

Protest — 

Any two members may . 

Reasons entered on journal. 

Public Buildings— . , , 

No money to be raised for, until. 

Public Defaulter — 

Ineligible as member of general assembly 

Public Money— v,- l j 

Receipts, etc., how published.. 


Art. Sec. 
6 

6 1 

7 1 

1 24 

1 24 

2 7 

Sched. 3 

6 2 

6 3 

6 4 

Sched. 3 


2 6 


8 28 

8 1 

8 19 

8 20 

8 19 

8 6 


8 14 


3 8 


8 23 


8 28 


8 6 


Sched. 4 


8 10 

8 11 
8 11 
8 11 
8 11 
8 11 
8 11 
8 11 
8 11 


8 ^ 4 


8 6 

8 24 


3 6 


3 12 


8 4 

8 4 

8 4 

8 1 


3 12 


1 10 
1 10 


7 4 


1 28 


1 21 



















































114 


INDEX TO THE CONSTITUTION OF OHIO, 1802 


Public Welfare— Art. Sec. 

Private property subservient to. 8 4 

Punishment — 

Cruel, not inflicted. 8 13 

Quorum — 

Two-thirds constitute. 1 8 

Religion and Morality — 

Encouraged by legislature. 8 3 

Religious Sects — 

Tests, none required as qualification for office. 8 8 

No preference to be given. 8 3 

No one compelled to maintain. 8 3 

Reprieves — 

Granted by governor. 2 6 

Representatives — 

Ratio of . 1 2 

Apportionment . 1 2 

Exempt from arrest. 1 13 

Any two may protest. 1 10 

Chosen annually . 1 3 

When and how. 1 3 

Qualifications . 1 4 

Must have paid tax. 1 4 

Rights — 

Not delegated, remain with people. 8 28 

Rights of Persons — 

Rill of . 8 

Of conscience . 8 3 

To speak, write . 8 6 

To papers, possession protected . 8 6 

To worship God . 8 3 

Accused of crime . 8 11 

Safety — 

Right to pursue and obtain. 8 1 

Salaries — 

Executive department, how fixed. 1 19 

Judges . 1 19 

“ 3 8 

Members of legislature. 1 19 

Schools — 

Poor to participate in.•.. 8 26 

Shall be encouraged . 8 3 

Donations to. 8 25 

Seal of the State — 

Kept by the governor. 2 14 

Seat of Government — 

Chillicothe, until . 7 4 

Search Warrants — 

Issue on oath . 8 6 

Requisites of . 8 6 

Searches and Seizures — 

Unreasonable not made. 8 6 

Secretary of State — 

How elected . 2 16 

Term of office . 2 16 

Duties . 2 16 

Section 29 — 

Disposition of proceeds. 8 26 

Senate — 

Impeachment, trial of. 1 23 

Two-thirds must concur. 1 23 

Senators — 

Chosen biennially . 1 5 

Incompatible offices . 1 26 

Qualifications . 1 7 

Exempt from arrest . 1 13 

Any two may protest. 1 10 

Apportionment of . 1 g 

Defaulters ineligible . 1 28 

Shall have paid tax. 1 7 

Servitude — 

No involuntary allowed . g ] 

No alteration of constitution in respect to, allowed. 7 g 























































INDEX TO THE CONSTITUTION OP OHIO, 1802. 


115 


Session of General Assembly — Art. Sec. 

When to commence . 1 26 

Sheriff — 

Eligible, how long. 6 1 

Slavery — 

Not allowed . 8 2 

“ 7 6 

No change of constitution introducing, shall be made. 7 6 

Soldiers — 

How quartered . 8 22 

Speakers — 

To sign bills . 1 17 

Speech — 

Liberty of . 8 fi 

Members of legislature not questioned for debate. 1 13 

Style of Laws . 1 18 

Supreme Court — 

Consist of three judges. 3 2 

Supreme Court — 

Two a quorum. 3 2 

Term of . 3 10 

Jurisdiction — 

common law and chancery. 3 2 

criminal . 3 4 

certiorari . 3 6 

Judges — 

may divide state into circuits. 3 2 

conservators of peace. 3 7 

how appointed . 3 8 

term of office. 3 8 

salary . 3 8 

to appoint clerk . 3 9 

hold no other office. 3 8 


Suspending Laws — 

. Exercised only by legislature... 8 9 

Tax — 

Representatives shall have paid. 1 4 

Taxation — 

Not laid by the poll . 8 23 

Town and Township Officers — 

To be chosen annually. 6 3 

Transported — 

No person to be for crime.. 8 17 

Treasurer of State — 

Triennially appointed . 6 2 


Trial — 

By jury, inviolate. 8 8 

Person accused of crime... 8 11 


Troops — 

How quartered . 

Vacancies — 

In legislature, how filled... 

Of governor, how filled- 

What governor to fill. 


8 22 


1 12 
2 12 
2 8 


Voters — 

Qualifications . ’ ^ 

Privilege from arrest . * 3 


Warrants — 

Affidavit required 


Worship — 

All may, as conscience dictates. 

None compelled to support place of 

Yeas and Nays — 

Entered on journal . 














































Constitution of the State of Ohio of 1851 

With'Amendments Adopted on September 3, 1912 


ARTICLE 1. 

BILL OF RIGHTS. 

Section 

1. Inalienable rights. 

2. Where political power vested; special priv¬ 

ileges. 

3 Right of petition; instruction. 

4. Bearing arms; standing armies; military 

power. 

5. Trial by jury. Reform in civil jury S 5 'stem. 

6. Slavery and involuntary servitude, 

7. Religious liberty, etc.; test; education. 

8. Habeas corpus. 

9. Bail. 

10. Of the trial of accused persons and their 

rights. Depositions by state and comment 
on failure of accused to testify in criminal 
cases. 

11. Freedom of speech; libel. 

12. Transportation; forfeiture. 

13. Quarters of soldiers. 

14. Search warrants. 

15. Imprisonment for debt. 

16. Of redress in courts. 

17. Hereditary honors, etc 

18. Suspension of laws. 

19. Private property inviolate, unless, etc. 

19a. Damage for wrongful death. 

20. Powers not delegated. 

ARTICLE II. 

LEGISLATIVE. 

1. In whom legislative power is vested. Initia¬ 

tive and Referendum. 

la. Initiative and Referendum. 

lb. Initiative and Referendum. 

l c. Initiative and Referendum. 

l d. Initiative and Referendum. 

le. Initiative and Referendum. 

l f. Initiative and Referendum. 

l g. Initiative and Referendum. 

2. Election, and term 

3. Who eligible. 

4. Who ineligible. 

6. Who ineligible to any office. 

6. Who to determine qualifications, etc.; mem¬ 

bers; quorum; attendance. 

7. Mode of organizing. 

8. Rules and rights of punishment and expul¬ 

sion. Investigation by each house of gen¬ 
eral assembly. 

9. Journal; yeas and nays; majority to pass a 

,0. Pro's, 

11. Vacancies. 

12. Privilege as to arrest, and speech. 

13. Proceedings public, unless, etc. 

14. Adjournments. 

15. Where bills shall originate. 

16. Bill to be read three times; not to contain 

more than one subject; acts revived or 
amended; veto by governor. 

17. Signatures to bills. 

18. Style of laws. 

19. Exclusion of members from office. 

20. Terms of office to be fixed; salary. 

21. Trial of contested elections. 

22. Appropriations. 

23. 24. Impeachments. 

25. When sessions to commence. 

26. What laws to have uniform operation; upon 

whose approval to take effect. 

27. Power of appointment to office; vote for U. 

S. senator. 

28. Retroactive laws, etc. 

29. Extra compensation, 
so. New counties. 

31. Compensation of members^ and officers of 

general assemblv; perquisites. 

32. Divorce and judicial power. 

.28. Mechanics’ and builders’ liens. 

84. Welfare of employes. 

85. Workmen’s comnensation. 

86. Conservation of natural resources. 


Section 

37. Eight hour day on public work. 

38. Removal of officials. 

39. Regulating expert testimony in criminal trials. 

40. Registering and warranting land titles. 

41. Abolishing prison contract labor. 

ARTICLE III. 

EXECUTIVE. 

1. Executive officers. 

2. Their terms of office. 

3. 4. Returns of their elections. 

5. (lovernor’s power. 

6. He may require reports: general duty. 

7. His message. 

8. Limiting power of general assembly in extra 

session. 

9. When he may adjourn the general assembly. 

10. Commander-in-chief. 

11. Reprieves, pardons, etc. 

12. The seal of the state. 

13. Grants and commissions. 

14. Who ineligible for governor. 

15. Vacancy in his office, etc. 

16. Lieutenant-governor. 

17. \ acancy in his office, etc. 

IS. What vacancies governor to fill, etc. 

19. Compensation of executive officers. 

20. What officers shall report to the governor, 

and when, etc. 

ARTICLE IV. 

^ JUDICIAL. 

1. In whom judicial power vested. 

2. The supreme court. 

8. The common pleas. 

4. Jurisdiction [of common pleas]. 

5. [Repealed October 9, 1883.] 

6. Courts of apjieals. 

7. Probate courts. 

8. Jurisdiction [of probate court]. 

9. Justices of the peace. 

10. Flection of other judges, and term of office. 

11. [Repealed October 9, 1883.] 

12. Common pleas judges; term of office, and 

residence. 

13. Vacancies in the office of judge. 

14. Compensation; when ineligible as candidate 

for other office. 

15. Number of judges may be increased or 

diminished, districts altered, and other 
courts established. 

16. Clerks of courts. 

17. How judges removed. 

IS. Jurisdiction at chambers, etc. 

19 Courts of arbitration. 

20. Style of process; conclusion of indictments. 

21. Supreme court commission. 

ARTICLE V. 

ELECTIVE FRANCHISE. 

1. Who may vote. 

2. How. 

3. Electors privileged from arrest. 

4. Forfeiture of elective franchise. 

5. Who deemed non-residents. 

6. Idiots and insane. 

7. Primary elections. 

ARTICLE VI. 

EDUCATION. 

1. The school and religious fund. 

2. Common school fund to be raised: how con¬ 

trolled. 

8. Public school system; boards of education. 

4. Superintendent of public instruction. 

ARTICLE VII. 

PUBLIC INSTITUTIONS. 

1. Insane, blind, deaf and dumb. 

2. Penitentiary. 

3. Vacancies; how filled. 


116 




CONSTITUTION OF THE STATE OF OHIO OF 1851. 


117 


ARTICLE VIII. 

PUBLIC DEBT AND PUBLIC WORKS. 

Section 

1, 2, 3. Limitation upon public debt. 

4. Loan of credit of state; state not to own 
stocks. 

6. Assumption of debts by the state. 

6. Counties, cities, towns or townships, not 

authorized to become stockholders, etc. 
Insurance, etc. 

7. Sinking fund to pay public debt; 

8. Commissioners thereof, 

9. 10, 11. Duties of the commissioners, governor, 

general assembly, etc. 

12. Superintendent of public works. 

13. [Repealed, September 3, 1912]. 

ARTICLE IX. 
militia. 

1. Who to perform military duty. 

2. Officers of militia. 

3. How appointed. 

4. Their commissions; when governor to call out 

militia. 

5. Public arms. 

ARTICLE X. 

COUNTY AND TOWNSHIP ORGANIZATIONS. 

1. County and township officers. 

2. Election of county officers. 

3. Eligibility of sheriff and treasurer. 

4. Election of township officers. 

5. County and township funds. 

6. Removal of officers. 

7. Local taxation. 

ARTICLE XL 
apportionment. 

1. Apportionment for members of the general 

assembly. 

2, 3, 4, 5. Ratio in the house. 

6. Ratio for senator. 

7, 8, 9. Senatorial districts. 

10.. Apportionment of representatives for ten 
years. 

11. When ratio determined by governor, auditor, 

etc. 

12. Judicial apportionment. 

13. New counties. 

ARTICLE XII. 

FINANCE AND TAXATION. 

1. Poll tax. 

2. Taxation by uniform rule; exemption. 

3. How property of banks to be taxed. 

4. What revenue to be raised. 

5. Levying of taxes, and application. 

6. Debt for internal improvement. 

7. Taxation of inheritances. 

8. Taxation of incomes. 

9. Apportionment of inheritance and income 

tax. 

10. Taxation of franchises and production of 

minerals. 

11. Sinking fund. 

ARTICLE XIII. 

CORPORATIONS. 

1. Special acts of incorporation. 

2. Corporations, how formed. 

3. Dues from corporations; how secured. 

Double liability of state banks and inspec¬ 
tion of private banks. 

4. Taxation of corporate property. 

5. Right of way. 


Section 

6. Organization of cities, etc.; taxes, etc., there¬ 

in. 

7. Incorporation of banks. 

ARTICLE XIV. 

JURISPRUDENCE. 

1. Code commissioners. 

2. Their duties. 

3. Their reports. 

ARTICLE XV. 

MISCELLANEOUS. 

1. Seat of government. 

2. Public printing. 

3. Publication of receipts and expenditures. 

4. Who eligible to office. 

5. Duelists ineligible. 

6. Lotteries. 

7. Official oath. 

8. Bureau of statistics. 

9. License to traffic in intoxicating liquors. 

10. Civil service. 

ARTICLE XVI. 

AMENDMENTS. 

1. This constitution be amended, and how. 

2. Same subject. 

3. Same subject. 

ARTICLE XVII. 

ELECTIONS. 

1. Time for holding. 

2. Terms of officers, vacancies, etc. 

3. Present incumbents. 

ARTICLE XVIII. 

MUNICIPAL CORPORATIONS. 

1. [Classification.] 

2. [General and additional laws.] 

3. [Powers.] 

4. [Public utilities.] 

5. [Public utilities.] 

6. [Public utilities.] 

7. [Home rule.] 

8. [Home rule.] 

9. [Home rule.] 

10. [Appropriation in excess of public use.] 

11. [Assessments for cost of appropriating prop¬ 

erty.] 

12. [Bonds for public utilities.] 

13. [Taxation, debts, reports and accounts.] 

14. [Elections.] 

SCHEDULE. 

1. Of prior laws. 

2. First election for general assembly. 

3. For state officers. 

4. For judges, etc. 

5. Who to continue in office. 

6. As to certain courts. 

7. County and township officers. 

8. Vacancies. 

9. When Constitution took effect. 

10. Term of office. 

11. Successors of the court in bank. 

12. Of the supreme court. 

13. Of the common pleas. 

14. The probate court. 

15. Election of judges and clerks. 

16. Returns of electors. 

17. Vote on the adoption of the Constitution. 

18. Vote on provisions as to intoxicating liquors. 
[20.] Schedule of constitutional amendments sub¬ 
mitted September 3, 1912. 

[21.] Method of submission. 


We^ the people of the State of Ohio, grateful to Almighty 
God for our freedom, to secure its blessings and promote our 
common welfare, do establish this Constitution. 


I. Bounf1ario.«t of Ohio. II. Freedom. 

I. IlOrNDARIES OP OHIO. 

For original boundary lines of Ohio, see act of Congress, approved, 
April 30, 1802, 1 Chase, 70. 

When the constitution of 1802 was formed the latitude of the 
southerly extremity of Lake Michigan was not known accurately, 
and was supposed to be much farther north than in fact it was. 








118 CONSTITUTION OP THE STATE OP OHIO OP 1851. 


The boundaries of Ohio, as prescribed in the enabling act passed by 
congress on April 30, 1802 (Swan’s Land Laws, 221) in § 2 of such 
act, was “on the east by the Pennsylvania line, on the south by the 
Ohio river to the mouth of the Great Miami, on the west by a line 
drawn due north from the mouth of the Great Miami aforesaid, and 
on the north by an east and west line drawn through the southerly 
extreme of Lake Michigan, running east after intersecting the due 
north line aforesaid, from the mouth of the Great Miami, until it shall 
intersect Lake Erie or the territorial line, and thence with the 
same through Lake Erie to the Pennsylvania line aforesaid”. 

The provision in this section of the Ohio constitution was probably 
inserted because it was realized that the latitude of the southern 
extreme of Lake Michigan was uncertain. See discussion in Daniels 
v. Stevens, 19 O. 222. 

As this territory became settled a sharp dispute between Ohio 
and Michigan arose, which was finally settled by an act of congress 
passed June 15, 1836, which fixed the northern boundary of Ohio 
at a line drawn directly from the southern extreme of Lake Michigan 
to the most northerly cape in Maumee Bay; thence intersecting the 
territorial line, and thence with the same to the Pennsylvania line. 
This statute required Michigan to assent thereto as a condition 
precedent to its admission to the Union. Michigan assented to such 
provision December 15, 1836, and Michigan was admitted to. the Union 
January 26, 1837. See discussion in Myers v. Bank, 20 O. 283. 

Service of summons upon one who resided in the strip of territory 
in dispute at a time when it was in fact a part of Michigan, did not 
give jurisdiction to a court of Ohio: Daniels v. Stevens, 19 O. 222. 

A banking corporation which was engaged in business in the 
territory in dispute between Ohio and Michigan, and which was 
incorporated by the territory of Michigan, could not be regarded as 
an Ohio corporation after such territory was awarded to Ohio: Myers 
V. Bank, 20 O. 283. 

The state is bounded by the Ohio river at the edge of the water. 
See obiter in McCullock v. Aten, 2 O. '^07. 

The Ohio is a navigable river; it is moreover the boundary of 
state jurisdiction and sovereignty, and could only be a proper bound¬ 
ary for such purpose, while each state was limited to its own side 
of the water, because the jurisdiction of each, in its very nature, 
is exclusive of all others. Virginia being the original proprietor of 
both banks of the Ohio, granted to the United States all lands lying 
northwest of that river. This was held to convey only to low water 
mark. If Virginia had not been the original proprietor of both banks 
of the river, and it was a common boundary, the line would be the 
center, and the islands go with the adjoining mainland on that side 
of the channel where they lie: Benner v. Platter, 6 O. 504. 

Land on the Ohio river between high and low water mark, is 
not common to the public, but may be conveyed by the adjacent pro¬ 
prietor whose land bounds on the river: Blanchard v. Porter, 11 O. 
138. 

The territorial limits of the state of Ohio extend on the southeast, 
at least to the line of ordinary low water mark, on the northwest 
side of the Ohio river: Booth v. Hubbard, 8 O. S. 243. 

It does not become necessary, in this case, to determine whether 
the middle of the Ohio river, “the filum medium aquae,” does or does 
not constitute the boundary line between the states of Virginia and 
Ohio. For all the purposes of this case, it may be assumed that 
Virginia was the original undisputed owner of the territory on both 
sides of the river, and still retains all that she did not part with by 
her deed of cession in 1784. By that deed she ceded to the United 
States, “all right, title, and claim, as well of soil as jurisdiction, 
which the said commonwealth hath to the territory within the limits 
of the Virginia charter, situate, lying, and being to the northwest 
of the river Ohio. (1 U. S. L. 474.) The object and one of the 
conditions of the cession, was that the ceded territory should be laid 
out and formed into states. In the case of Handley’s Lessee v. 
Anthony, the supreme court of the United States, proceeding on the 
assumption that Virginia was the proprietor of both sides of the 
river, was called upon to give a construction to this deed of cession, 
and determine the boundary line which it establishes for the states 
bordering on the river. Chief Justice Marshall, in that case, states 
the general principle thus: “When a great river is the boundary 
between two nations or states, if the original property is in neither, 
and there be no convention respecting it, each holds' to the middle 
of the stream. But when, as in this case, one state is the original 
proprietor, and grants the territory on one side only, it retains the 
river within its own domain, and the newly created state extends 
to the river only. The river, however, is its boundary.” (5 Wheat. 
Rep. 374.) The court further say in this case: “Wherever the river 
is a boundary between states, it is the main, the permanent river, 
which constitutes that boundary, and the mind will find itself em¬ 
barrassed with insurmountable difficulty in attempting to draw any 



119 


CONSTITUTION OF THE STATE OF OHIO OF 1851 


other line than the low water mark.” And looking- to the intention 
of Virginia in this cession to the fact that she contemplated the 
future existence of independent states on the northwest side of the 
river, which, in the language of her compact with Kentucky in 1789, 
should “possess the opposite shores of the river,” and that she must 
have had in view and intended the reasonable convenience of the future 
population of the new states, and looking to the natural character 
of the boundary furnished by the river itself, it was held in that 
case, that the boundary line, contemplated in the deed of cession, is 
that of low water mark on the northwest side of the river. 

This decision has been acquiesced in by the courts of Virginia. 
In the case of Commonwealth v. Garner (3 Gratt. Rep. 655), a majority 
of the general court of that state, upon a very full examination 
of the subject, recognized the authority and propriety of the decision 
in Handby’s Lessee v. Anthony; Booth v. Hubbard, 8 O. S. 243. 

Ohio has always claimed to own to the center of the Ohio river: 
<3ridge Co. v. Mayer, 31 O. S. 317. 

“Whether the state did not confer and the company accept its 
franchise upon the condition that it would not assert any right, power, 
or liberty under its charter incompatible with these limitations; and 
whether it is not estopped, by the clear implication of the sixth 
clause, from denying the jurisdiction and sovereignty of Ohio to the 
centre of its bridge, are grave inquiries, upon which the court is not 
now required to pass”: Sebastian v. Bridge Co., 21 O. S. 451. 

The boundary line between the United States and Canada through 

Lake Erie is the northern boundary of this state, and its jurisdiction 
extends to that line: Edson v, Crangle, 62 O. S. 49. 

A boat in the Ohio river made fast to the Ohio shore is not within 

the jurisdiction of the state of Kentucky, nor amenable to process 
of that state: Eckert v. Colvin, 1 Dec. Rep. 11, 1 W. Ij. J. 54. 

For offenses committed on the river between Ohio and Virginia, 
each state has concurrent jurisdiction: Ohio v. Stevens, 1 Dec. Rep. 
82, 2 W. L. J. 66 [reversed, on another point, Stephens v. State, 14 O. 
3S6]. 

For a discussion of the right of Ohio to concurrent jurisdiction 
with Virginia and Kentucky over the whole of Ohio river, see 3 W. 
L. J. 310 [report of Senate committee]; 3 W. L. J. 337 [speech of Mr. 
Anderson]; 4 W. L. J. 145 [Mr. Vinton’s argument], and 5 W. L. J. 
433 [report of Ohio commissioners]. 

See Const. 1802, Art. VII. § 6. 

II. FREED03I. 

It must be presumed that the laws to be passed by the general 
assembly under the powers conferred by the constitution, are to be 
such as shall secure the blessings of freedom and promote our common 
welfare: Palmer v. Tingle, 55 O. S. 423. 

A former legislative act (R. S. § 6968-2), imposing an unequal 
license on gill nets when used from different boats, was held to 
violate this provision for freedom and welfare: Yensen v. State, 7 
O. N. P. 18, 9 O. D. (N.P.) 168. 

2 Debates, 231, 326, 806, 826, 856. 


ARTICLE 1. 

BILL OF RIGHTS. 

Section 1. All men are, by nature, free and independent, 
and have certain inalienable rights, among which are those of 
enjoying and defending life and liberty, acquiring, possessing, 
and protecting property, and seeking and obtaining happiness 
and safety. {See Const. 1802 , Art. VIII, § i.) 


I. Cited. 

II. All men are by nature free. 

III. Life. 

IV. liiberty. 

V. Property. 

A. Corporeal property. 


II. Contracts. 

C. Mechanic’s lien. 

D. Licenses. 

E. Discrimination. 

VI. Happines.s and safety. 


I. CITED. 

Lucas County v. State, ex rel., 75 O. S. 114; Gage v. State, 1 

O. C. C. (N.S.) 221, 14 O. C. D. 724 [reversed. State v. Gage, 72 O. S. 

210]; State, ex rel., v. Commissioners, 7 O. C. C. (N.S.) 469, 18 O. C. D. 
212; Ex parte Mullaney, 8 O. N. P. 49, 10 O. D. (N.P.) 419; In re Appli¬ 
cation of Bochtel, 11 O. C. C. (N.S.) 537. 21 O. C. D. 159; Hotel Co. v. 

Jones, 2 O. L. R. 427, 193 U. S. 532, 14 O. F. D. 337; Shaw v. Railway, 
8 O. L. R. 43. 


Art.I, § 1. 


Right to free¬ 
dom and protec¬ 
tion of property. 



120 


Art.I,§l. CONSTITUTION OF THE STATE OF OHIO OF 1851. 


II. AMi MEN ARE IIY NATURE FREE. 

Scienter is necessary to the conviction of a man for harboring- a 
slave, and one may presume all persons free and equal: Birney v. 
State. 8 O. 230. 

“The absolute and equal freedom of all persons at birth is a fun¬ 
damental principle of American institutions, proclaimed with inde¬ 
pendence, and incapable of abrogation. This principle was, by the 
ordinance of 1787, impressed on the soil of Ohio, before there was an 
organized community wdthin her limits; it is fundamental in her 
organization: always embodied in her constitution; and her law^s, her 
policy and the convictions, the morals and the religion of her people 
are instinct with its spirit”: Anderson v. Poindexter, 6 O. S. 622. 

This section does not give a man the right cruelly to beat a 
horse, and an act for the punishment of such conduct is valid: 
Beamer v. State, 21 O. C. C. 440, 12 O. C. D. 4. 

This section does not forbid the enactment of a statute or the 
passage of an ordinance which forbids the employment of females in 
places where spirituous liquors are sold: Bergman v. Cleveland, 39 
O. S. 651. 

III. LIFE. 

To justify killing to defend one’s life, fear of great bodily harm 
must be shown: Stewart v. State. 1 O. S. 66. 

“It is urged that the law of Ohio is, that a person assailed may 
in all cases, without retreating, take his assailant’s life, if he reason¬ 
ably believe it necessary to do so in order to save his own life, or to 
avoid great bodily harm; and this, although he could, without in¬ 
creasing his danger, retire, and thereby escape all necessity of slaying 
his adversary. As to what is the precise state of the law on this 
subject, there is some diversity of opinion among the members of this 
court, and, therefore, without attempting at this time to lay it down, we 
prefer to dispose of the case upon a view which is satisfactory to us all. 

Whether a person assaulted, is, or is not, bound to quit the 
combat, if he can safely do so. before taking life, it will not be 
denied that, in order to justify the homicide, he must, at least have 
reasonably have apprehended the loss of his own life or great bodily harm, 
to prevent which, and under a real, or at least supposed necessity, 
the fatal blow must be given. And, again, the combat must not have 
been of his own seeking, and he must not have put himself in the 
way of being assaulted, in order that, when assaulted and hard 
pressed, he might take the life of his assailant”: Stew'^art v. State, 
1 O. S. 66. 

“When the nature of the question and the history of the rulings 
on the subject of defending person and property which have illus¬ 
trated the advancement of the common law, from rude and barbarous, 
to refined and enlightened civilization, are clearly taken into view, we 
shall find the reasoning of Justice Redfield altogether safe and exactly 
in harmony with the system of government and society to which it is 
applied. Tt is well settled,’ says the justice, ‘that one may defend the 
possession of his property against a stranger with such force as may 
be necessary.’ But this right can not be extended to the case of an 
officer whose duty it is to attach property whenever he is requested 
so to do. He may or may not require indemnity for the act. But it 
would be too much to say that he must decide all cases of doubtful 
property at his own hazard, or that if he attempted to make an 
attachment when the property was not in fact in the debtor, he might 
by the owner of the property be resisted to any extremitJ^ . . . 

It must be familiar to all that, while the tendency of the best and 
highest American decisions, as well as the very genius of our govern¬ 
ment, are favorable to an increased regard for the sancity of the 

person by the same law, many measures of defense as to property 

have become obsolete and shocking to the enlightened humanity of 
the day. If the rule that one must retreat to the wall before iciiling 
his assailant has passed away, so has the day of mantraps and spring 
guns. . . . We hold, then, the better and safer and only pi-acticable 

rule to be that, whenever the question of property is so far doubtful 
that the creditor and officer may be supposed to act, and do act in 
good faith and on reasonable grounds for believing the property to be 
that of the debtor, the owner has no right to resist the execution or 
attachment by a breach of the peace. 

“The conversion of an execution into an alias writ can not affect 
the protection due to the constable to whom it was delivered. 

It was irregular, but not void”: Faris v. State, 3 O. S. 159. 

The guarantees found in this article are the only limitations upon 
the power of the general assembly to define and punish offenses: 
Morgan v. Nolte, 37 O. S. 23. 

IV. LIBERTY. 

An act forbidding the giving away in any place where liquors were 
sold of any food other than crackers (G. C. § 13224-1) was held in 
violation of this provision, as interfering with the seller’s use of his 
property and with the buyer’s right to eat what he pleases: State v 
Foucar, 8 O. L. R. 317, 55 Bull. 365. 



121 


CONSTITUTION OF THE STATE OF OHIO OF 1851. 


A constable, in serving a warrant for arrest out of the state, 
violates the right of liberty: Smith v. Commissioners, 9 O. 26. 

One arrested may be held, although it develops that at the time 
of arrest he was a suitor in court and had not time to reach his home: 
Gill V. Miner, 13 O. S. 182. 

“Liberty,” as used in this section, means “the right of man to be 
free in the enjoyment of the faculties with which he has been en¬ 
dowed by his Creator, subject only to such restraints as are necessary 
for the common welfare”: Crawford v. Tingle, 55 O. S. 423. 

It is competent to the general assembly in the exercise of its 
legislative power to adopt all such wholesome laws as may be neces¬ 
sary to promote the peace, health and well-being of society; laws fixing 
regularly recurring days of rest from all secular pursuits, such as our 
Sunday laws, are of this character, and do not violate the personal 
liberty of the individual, secured by the first section' of our bill of 
rights: State v. Powell, 58 O. S. 325; see, also. Bloom v. Richards, 
2 O. S. 387. 

This section does not prevent the legislature from excluding from 
the saloon business persons unable to give proper answers as to the 
character of the saloon business conducted by them: Bloomfield v. State, 
86 O. S. 253. 

V. PROPERTY. 

A. Corporeal property. The right of acquiring and protecting 
property is one of the inalienable rights of all men: Auditor v. State, 
ex rel., 75 O. S. 114. 

An act providing for search warrant to seize all stamped bottles 
and restore them to the true owner was held in conflict with this 
section: State v. Schmuck, 77 O. S. 438. 

These inalienable rights are possessed by living, not dead, men, 
and this section does not recognize any inherent testamentary power. 
Accordingly, provisions by which gifts and devises by will to chari¬ 
table and public purposes, made within a year prior to the decease of 
the testator are void, and not in conflict with this section: Patton v. 
Patton, 39 O. S. 590. 

A legislature may by statute prescribe the terms upon which one 
who has sold property on the installment plan may retake the same, 
and such statute does not violate this statute: Weil v. State, 46 
O. S. 450. 

The act of April 4, 1902, entitled “An act to prevent fraud in the 
purchase, disposition or sale of merchandise” (95 O. L. 96), is repug¬ 
nant to the first article of the constitution because it places an un¬ 
warrantable restriction upon the right of the individual to acquire 
and possess property, and because it contains a forbidden discrim¬ 
ination in favor of a limited class of creditors: Miller v. Crawford, 
70 O. S. 207. 

The provisions of the constitution which require that laws regu¬ 
lating rights in property shall operate generally and equally, extend 
to statutes which prescribe the presumptions and rules of evidence by 
which those rights are enforced: Williams v. Preslo, 84 O. S. 328. 

The act of April 30, 1908 (99 v. 241; G. C. §11102, et seq.), to 
render presumptively fraudulent sales in bulk of stock of merchandise 
unless the seller shall, not less than seven days before the transfer, 
file with the recorder of the county a notice of his intention to make 
such sale, is repugnant to the first article of the constitution, and 
therefore void (Miller v. Crawford, 70 O. 207, approved and followed): 
Williams v. Preslo, 84 O. S. 328. 

An act to deduct one per cent, of the salary paid to teachers to 
create a pension fund violates this provision, as a teacher's salary 
is his property, and if he prefers to spend his money as he earns it, 
it is his right under the constitution to do so: State, ex rel., v. Hub¬ 
bard, 22 O. C. C. 252, 12 O. C. D. 87 [affirmed, without report, Hibbard 
V. State, 65 O. S. 574]. 

It is a violation of the employer’s right to acquire property for 
third persons to induce or coerce his workmen to leave, and injunc¬ 
tion will lie against a labor union; Hillenbrand v. Trades Council, 
14 O. D. (N.P.) 628. 

The destruction of a thing which is in itself a nuisance, as impure 
milk, is constitutional, but if only its use is harmful, as in case of an 
animal, it can not be destroyed: Kaiser v. Walsh, 4 O. N. P. (N.S.) 
507, 17 O. D. (N.P.) 324. 

Under this section a statute which requires railways to give 
discharged employes a statement in writing of the reason for their 
discharge is unconstitutional, since it interferes with the rights of 
the railroad to acquire and to protect property: Connell v. Railway, 
14 O. D. (N.P.) 400. 

A statute which gives a right of confiscating fish nets, but made 
no provision for a legal proceeding by which such confiscation might 
be adjudged, was rendered unconstitutional by this section: Edson v. 
Crangle, 62 O. S. 49. 


Art.I, § 




122 


Art.I, § 1. CONSTITUTION OF TUB STATE OF OHIO OF 1851. 


A statute which declares that a fish net used in violation of the 
law was a public nuisance and which provided for its destruction by 
certain public officers (compare G. C. § 1398), is a valid exercise of 
the police power of the state, and is not rendered invalid by this 
constitutional provision: State v. French, 71 O. S. 186. 

B. Contracts. In view of the guarantees of the bill of rights, 
G. C. § 3673 can not be so interpreted as to authorize a municipal 
council to impose a license fee upon merchants who do not sell upon 
the public streets or places, but only solicit orders and negotiate 
future sales at the residences of their customers: Tea Co. v. Tippe¬ 
canoe, 85 O. S. 120. 

This section renders unconstitutional a statute which provides 
that contractors, in constructing public improvements, must employ 
their laborers for an eight-hour day: Cleveland v. Construction Co., 
67 O. S. 197. 

An act limiting the hours of service of laborers on public works 
was held to be in conflict with this section as abridging the right to 
contract: Stewart v. Gardner, 10 O. C. C. (N.S.) 408, 20 O. C. D. 222. 

An ordinance which makes provision for the construction of a 
public improvement and fixes a minimum rate of wages to be paid to 
common laborers thereon and fixes a maximum number of hours for 
a day’s work, is unconstitutional: State v. Norton, 5 O. N. P. 183, 

7 O. D. (N.P.) 354. 

A statute which provided that ten hours should be a day’s work, 
and that extra payment should be made in excess of ten, was held to 
be unconstitutional by reason of this provision: Railroad v. Gilmore, 

8 O. C. C. 658, 4 O. C. D. 366. 

Under this section a statute which makes it a crime to discharge an 
employe because of his connection with a labor organization is valid: 
In re Berger, 12 O. N. P. (N.S.) 401; Davis v. State, 30 Bull. 342. 

Contra: that such statute is unconstitutional, see: State v. Bate¬ 
man, 7 O. N. P. 487, 10 O. D. (N.P.) 68. 

Apparently to the same effectb State v. Brookman, 72 O. S. 428. 

The right to acquire property involves the right to contract, and 
applies to corporations as individuals; and a law is unconstitutional 
that enlarges the price of road contracts by allowing mechanics’ liens 
when the head contractor has been paid in full: Stewart v. Gardner, 
10 O. C. C. (N.S.) 408, 20 O. C. D. 218. 

Freedom to contract includes contracts of employe to refrain 
from seeking damages of company where he has taken sick benefits, 
so that a law forbidding such contracts is unconstitutional: Cox v. 
Railroad, 1 O. N. P. 213, 2 O. D. (N.P.) 594 [question not considered 
in Railway v. Cox, 55 O. S. 497]; see, also, Caldwell v. Railway, 14 
O. D. (N.P.) 375. 

This section prohibits any restraint upon the liberty of contract 
as the most frequent means of acquiring property: Jones v. Hotel 
Co., 86 Fed. 370, 30 C. C. A. 108, 10 O. F. D. 274; but see Hotel Co. v. 
Jones, 193 U. S. 532, 116 Fed. 793, 54 C. C. A. 162, 13 O. F. D. 727. 

This guarantees to every person the right to make and enforce 
all proper contracts and to employ such persons as he chooses free 
from restraints except such as are necessary for the common welfare: 
State V. Bateman, 7 O. N. P. 487, 10 O. D. (N.P.) 68. 

Employers have a right to employ whom they please upon such 
terms as they can agree upon, and the law will protect them against 
unlawful interference and boycotts: Manufacturing Co. v. Polishers’ 
Union, 8 O. N. P. 574, 11 O. D. (N.P.) 643. 

This section does not prevent the state from protecting minors 
and limiting their hours of labor under the police power: State v. 

Rodefer, 5 O. N. P. (N.S.) 337, 18 O. D. (N.P.) 76. 

C. Mechanic’s lien. A mechanic’s lien law which gave a lien to 

the subcontractors and materialmen, irrespective of the state of ac¬ 
counts between the owner and the principal contractor was held to 
be unconstitutional by reason of this section: Palmer v. Tingle, 55 
O. S. 423 [affirming Palmer v. Tingle, 9 O. C. C. 708, 6 O. C. D 709]. 

Contra: Hotel Co. v. Jones, 193 U. S. 532, 116 Fed. 793, 54 C. C. A. 

3 65, 13 O. F. D. 727; see Art. II, § 33 (adopted September 3, 1912). 

A subcontractor’s lien law which permits recovery from the 
owner only if he is indebted to the principal contractor and only 
to the extent of such indebtedness is constitutional: Lane v. Thomas 
15 O. C. D. 303. 

1>. License.s. A statute which authorized municipal corporations to 
impose license fees upon transient traders was held to be invalid, as 
unequal in its operation: Flatau v. Mansfield, 14 O. C C 592 7 

O. C. D. 39. . . , 

This section does not render invalid an ordinance which imposes 
a license fee upon persons who use vehicles upon the streets of 
municipal corporations: Sterling v. Bowling Green, 5 O. C. C (NS) 
217, 16 O. C. D. 581. 



123 


CONSTITUTION OF THE STATE OF OHIO OF 1851. Art.I, § 2. 


An act licensing- the same kind of net at different amounts -when 
used on different sized boats is invalid as imposing unequal burdens 
on men engaged in the same occupation: Yensen v. State, 7 O. N. P. 

18, 9 O. D. (N.P.) 168. 

This section was held to be violated by a provision for the 
seizure and destruction of unlicensed fishing nets without any right 
of action for damages permitted to the owner: French v. Shirley, 

7 O. N. P. 26, 9 O. D. (N.P.) 181; see, also, Edson v. Crangle, 62 O. S. 49. 

An act providing a penalty for erecting a temporary place of 

business within one-fourth of a mile of an agricultural fair, without 
permission of the board of managers (Q. C. § 13394) was held in conflict 
with this section as abridging right to acquire property: Markley 
V. State, 12 O. C. C. (N.S.) 81, 21 O. C. D. 225. 

General Code § 13208 forbidding sale of articles within four miles of an 
assemblage for worship without a permit from the managers is un¬ 
constitutional, although it excepted established dealers: State v. Coats, 

10 O. N. P. (N.S.) 349, 20 O. D. (N.P.) 561. 

Und*er a municipal local option law, a provision permitting brewers 
in dry towns to sell outside the town does not violate this section: 

Lloyd V. Dollison, 3 O. C. C. (N.S.) 328, 13 O. C. D. 571 [affirmed, 

without report. State v, Dollison, 68 O. S. 688]. 

General Code § 3673 must not be interpreted so as to authorize a 
municipal corporation to impose a license fee upon merchants who do 
not sell upon public streets but who only solicit orders at the resi¬ 
dences of their customers, and negotiate future sales there; and if so 
interpreted, it would be invalid as a violation of the right of property; 

Tea Co. v. Tippecanoe, 85 O. S. 

E. Di.scrimination. A statute which requires that a bond of 
administration be signed by surety companies rather than by personal 
surety is unconstitutional and in violation of this section: State v. 

Robins, 71 O. S. 273. Contra: McKisson v. Wright, 15 O. D. (N.P.) 105. 

In 17 O. C. D. 593 it was said that this section did not invalidate 
a statute which provided for paying pensions to worthy blind persons. 

This case, however, was reversed in Auditor v. Stall, 75 O. S. 114, 
on the ground that such statute provided for raising money by taxa¬ 
tion for purposes which were not public. 

This section does not render invalid the county depository act 
as a discrimination against natural persons in favor of banks (see, 

G. C. §§2715 and 2745): State v. Oviatt, 8 O. C. C. (N.S.) 481 [affirming 
State V. Oviatt, 4 O. N. P. (N.S.) 481, 17 O. D. (N.P.) 451]. 

A provision of the statute providing for local option, to the effect 
that business blocks were to be exempt, does not deny equal protec¬ 
tion of the laws to the property owners: Columbus v. Jeffrey, 2 O. N. 
r^. (N.S.) 85, 14 O. D. (N.P.) 609 [affirmed, Jeffrey v. State, 4 O. C. C. 

(N.S.) 494]. 

This section does not render invalid a provision which exempts 
building and loan associations from the operation of the usury laws: 

Building & Loan Association v. Desnoyers, 4 O. C. C. (N.S.) 337, 16 
O. C. D. 352; Carmichael v. Savings Co., 15 O. D. (N.P.) 341; see, also, 

Cramer v. Trust Co., 72 O. S. 395. 

A provision that the defendant only shall have right to appeal 
from the decision of a justice of the peace, on motion to dissolve 
an attachment does not violate this section; Hare v. Cook, 6 O. C. C. 

(N.S.) 73, 17 O. C. D. 289 [following Cecill v. Grant, 6 O. C. C. (N.S.) 

65, 17 O. C. D. 442]. 

The right to defend against an action to recover money is implied 
fiom the bill of rights, and a statute permitting an attorney’s fee 
for plaintiff to be charged to defendant violates this right: Coal Co. 
v. Rosser, 53 O. S. 12. 

VI. H.\PPINESS AND SAFETY. 

Prize fighters are public nuisances which affect a man’s comfort 
and welfare and his pursuit of happiness: State, ex rel., v. Hobart, 

8 O. N. P. 246, 11 O. D. (N.P.) 166. 

The act of May 31, 1911, relating to preservation of the health of 
females employed in manufacturing, mechanical, mercantile and other 
establishments, is not in derogation of the constitutional right of free¬ 
dom of contract, nor is the classification arbitrary or the exemption 
unreasonable which is therein established, but the act is justified on 
the ground of public health, morals and the general welfare, and is 
valid and enforcible: Ex parte Hawley, 12 O. N. P. (N.S.) 1 [affirmed 
upon authority of opinion of common pleas court in Ex parte Hawley, 

85 O. S. 494]. 

Section 2. All political power is inherent in the people. Right to alter. 
Government is instituted for their equal protection and benefit, [sh^°gove?im^nt‘ 
and they have the right to alter, reform, or abolish the pme, 
whenever they may deem it necessary; and no special privileges 



124 


Art.I, §2. CONSTITUTION OF THE STATE OP OHIO OF 1851. 


or immunities shall ever be granted, that may not be altered, 
revoked, or repealed by the general assembly. (See Const. 
i8o2, Art. VIII, § I.) 

See Const. 1802, Art. VIII, § 1. 

T. Cited. III. Equal protection. 

II. Political power inherent In IV. No irrevocable special privi- 

people. leges. 

I. CITED. 

Palmer v. Tingle, 55 O. S. 423; Auditor v. State, ex rel., 75 O. S. 
114; Uhrlaub v. Cincinnati, 8 O. C. C. (N.S.) 505, 18 O. C. D. 797 [affirmed, 
without report, in Cincinnati v. Uhrlaub, 72 O. S. 667]; In re Bachtel 
21 O. C. D. 159; Christy v. Groves, 3 O. N. P. 293, 2 O. D. (N.P.) 384; 
Hotel Co. V. Jones, 2 O. L. R. 427, 193 U. S. 532, 14 O. F. D. 337. 

II. POLITICAL, POAVER INHERENT IN PEOPLE. 

“The constitution apportions political power among the inhabitants 
of the state as nearly equally as possible, in proportion to numbers, 
without any regard whatever to property, or indeed to any other 
circumstance. Inhabitants alone are represented: a given number 
in one place exercise the same political power as a like number in 
any other locality”: State v. Dudley, 1 O. S. 437. 

This enunciates the foundation principal of our government, to- 
wit: that the people are the source of all political power; but it was 
not intended as a denial of the right of delegation and representation: 
State, ex rel., v. Covington, 29 O. S. 102. 

III. EQUAL PROTECTION. 

Judicial tribunals are provided for the equal protection of every 
suitor: Coal Co. v. Rosser, 53 O. -S. 12. 

The doctrine of equal protection does not include every slight 
inconvenience which may be distorted into a seeming inequality: 
State, ex rel., v. Bode, 55 O. S. 224. 

This section does not render invalid a statute which forbids the 
placing of the name of a candidate more than once on a ballot: State, 
ex rel., v. Bode, 55 O. S. 224. 

Laws providing for primary elections by parties casting ten per 
cent, of the vote at last general election do not deprive any person 
of the equal protection of the law: State, ex rel., v. Felton, 77 O. S. 554. 

The statutes creating the Railroad commission, G. C. § 487, et seq., 
are valid and constitutional: Railway v. Railroad Commission, 21 O. D. 
(N.P.) 468. 

This section limits, impliedly, the power of the general assembly 
to tax privileges and franchises: Southern Gum Co. v. I^aylin, 66 
O. S. 578. 

A mechanic’s lien law which allowed subcontractors and material- 
men to file a direct lien upon a property, irrespective of the state 
of accounts between the owner and the chief contractor, was held to 
be invalid by reason of this section: Palmer v. Tingles, 9 O. C. C. 708, 

6 O. C. D. 709 [affirmed. Palmer v. Tingle, 55 O. S. 423]. 

A direct inheritance tax law which exempted estates below a 
certain limit; and also taxed the estates at different rates, according 
to their respective amounts, was held to be invalid in State, ex rel., 
r. Ferris, 53 O. S. 314. 

A direct inheritance tax law which exempted up to the amount 
of three thousand dollars, was held not to deprive any persons of 
the equal protection of the laws, if it operated uniformly throughout 
the state and bore equally upon all persons standing in the same 
category: State, ex rel., v. Guilbert, 70 O. S. 229. 

A collateral inheritance tax statute which exempts property devised 
to or for the use of any institution in this state for purposes of 
purely public charity, does not exempt devises to foreign religious 
organizations; but this section does render such statute invalid on 
account of such discrimination: Humphreys v. State, 70 O. S. 67. 

A collateral inheritance tax which exempted two hundred dollars 
worth of property, and imposed a higher rate upon the more remote 
relations than upon the nearer ones, was held to be valid: Haggerty 
V. State, ex rel., 55 O. S. 613. 

A statute which authorizes municipal corporations to impose 
license fees on transient traders is unconstitutional by virtue of this 
section (G. C. §§ 3673 and 3676): Flatau v. Mansfield, 14 O. C. C. 592, 

7 O. C. D. 39. 

General Code §§ 6083, 13219 and 13221 which require answers to cer¬ 
tain questions to be made by persons who are engaged in the business 
of selling intoxicating liquors when the tax assessor is collecting 
returns for taxation, are not rendered invalid by reason of this sec¬ 
tion: Bloomfield v. State, 86 O. S. 253. 




125 


CONSTITUTION OP THE STATE OP OHIO OP 1851. 


A local option law for cities, allowing brewers in dry territory 
to sell outside of such territory, does not violate this section: Lloyd 
V. Dollison, 3 O. C. C. (N.S.) 328, 13 O. C. D. 571 [affirmed, without 
report, in State v. Dollison, 68 O. S. 688]; see, also. State v. Dollison, 
194 U. S. 445, 14 O. F. D. 380. 

A local option statute which exempted business property was not 
on that account unconstitutional: Columbus v. Jeffrey, 2 O. N. P. 
(N.S.) 85, 14 O. D. (N.P.) 609 [affirmed, Jeffrey v. State, 4. O. G. C. 
(N.S.) 494}. 

This section of the constitution does not prevent the imposition 
of a license fee upon persons who use vehicles on the public streets 
of municipal corporations: Sterling v. Bowling Green, 5 O. C. C. (N.S.) 
217, 16 O. C. D. 581. 

A statute which imposes a higher license fee upon nets of the same 
kind which are used by steamboats from that imposed upon nets of the 
same kind used by rowboats, is invalid under this section: Yensen v. 
State, 7 O. N. P. 18, 9 O. D. (N.P.) 168. 

A former statute, prescribing a license for after-acquired motor 
vehicles only, was declared unconstitutional as imposing burdens on 
certain citizens from which others of the same class were exempt: 
Feasel v. State, 6 O. N. P. (N.S.) 321, 18 O. D. (N.P.) 478. 

A law which requires every plumber to undergo examination and 
obtain a license, but permits all members of a firm to pursue the 
business where one only has procured such license, does not operate 
equally upon all of a class, and is invalid: State v. Gardner, 58 O. S. 
599. 

An act providing for licensing stationary engineers which exempts 
those employed as engineers for three years before the passage of 
the act, grants special privileges and is invalid: Harmon v. State, 
66 O. S. 249 [affirming State v. Harmon, 3 O. C. C. (N.S.) 399, 13 O. C. 
D. 292]. 

A statute which requires pawnbrokers to file weekly reports is 
valid: Sanning v. Cincinnati, 81 O. S. 142. 

An act providing that conductors who had been employed two 
years would be exempt from the examination prescribed, was held to 
create favored classes and contravene this section: Railway v. State, 
4 O. C. C. (N.S.) 126, 16 O. C. D. 348 [affirmed, without report, in State 
Railway, 70 O. S. 506]. 

A statute providing that any employe of a railway having power 
to direct another, is not a fellow servant of an employe having no 
such power, though in a different branch of the service, is not uncon¬ 
stitutional as granting special privileges (see G. C. §9016): Froelich 
V. Railway, 5 O. C. C. (N.S.) 6, 14 O.. C. D. 359; see, also. Roe v. Rail¬ 
way, 13 O. D. (N.P.) 260 [affirmed, 4 O. C. C. (N.S.) 284, 15 O. C. D. 628]. 
Contra: Maltby v. Railway, 13 O. D. (N.P.) 280; Kane v. Railway, 

142 Fed. 682, 73 C. C. A. 672, 15 O. F. D. 188; Kane v. Railway, 133 Fed. 
681, 67 C. C. A. 658, 14 O. F. D. 452 [reversing Kane v. Railway, 123 

Fed. 474, 14 O. F. D. 213, 2 O. L. R. 27]; Railway v. Kane, 118 Fed. 223, 

55 C. C. A. 129, 14 O. F. D. 193. 

A statute which provided for paying to needy blind persons a 
pension of twenty-five dollars each, quarterly, from the county treasury, 
was held to be unconstitutional as an unreasonable discrimination: 
Auditor of Lucas County v. State, ex rel., 75 O. S. 114 [reversing 

Davies v. State, ex rel., 6 O. C. C. (N.S.) 417, 17 O. C, D. 593]. 

A statute providing free text books for poor children does not 
discriminate against those who have no children, nor deny to any 
the equal protection of the law: Mooney v. Bell, 8 O. N. P. 658, 11 
O. D. (N.P.) 786. 

A statute limiting the number of prisoners in state prisons to 
be employed in any one occupation is unconstitutional, as favoring 
certain people and denying the equal protection of law: Baldwin 
Forging Co. v. Griffith, 5 O. N. P. (N.S.) 566, 18 O. D. (N.P.) 261. 

An act providing that sales of merchandise in bulk shall be void 
unless a list of creditors be sent the purchaser, is void as discrimina¬ 
ting in favor of a limited class of creditors: Miller v. Crawford, 70 
O. S. 207. 

A statute which makes such sales presumptively fraudulent 
(G. C. § 11102, et seq.), has also been held to be unconstitutional in 
Williams & Thomas Co. v. Preslo, 84 O. S. 328. 

A statute which exempts building and loan associations from the 
operation of the usury laws is not invalid (see G. C. § 9650): Cramer 
V. Trust Co., 72 O. S. 395; Loan Association v. Desnoyers, 4 O. C. C. 
(isT.S.) 337, 16 O. C. D. 352. 

The statute wffiich requires that coal be weighed before screening, 
for the purpose of determining the compensation of the miner, is 
invalid as not affording equal protection: In re Preston, 63 O. S. 428. 

An act providing that benefits paid to a member of a fraternal 
organization shall not be appropriated for debts is unconstitutional, 
as conferring privileges on some of a class not enjoyed by others of 
the same class: Williams v, Donough, 65 O, S. 499. 


Art.I, § 2. 



126 


Art.I, § 3. 


Of the right to 
assemble. 


Of bearing arms 
standing armies: 
subordination of 
military power. 


CONSTITUTION OF TUB STATE OF OHIO OF 1851. 


A statute which provided that the bonds of administrators, in 
excess of a certain amount, must be signed by surety companies Is 
invalid by reason of this section: State v. Robins, 71 O. S. 278; 
Haunts v. Lanman Co., 2 O. N. P. (N.S.) 405, 15 O. D. (N.P.) 64. 

An act for the compulsory improvement of county ditches does 
not violate the provision against unequal legislation: Taylor v. Craw¬ 
ford, 72 O. S. 560 [reversing Crawford v. Taylor, G O. C. C. (N.S.) 278, 
17 O. C. D. 245]. 

The Willis law, taxing the franchise of a corporation, is constitu¬ 
tional and does not deny the equal protection of the law: Southern 
Gum Co. V. Laylin, 66 O. S. 578; State v. Bridge Co.. 6 O. N. P. (N.S.) 
55, 18 O. D. (N.P.) 273; see, also. Telegraph Co. v. Mayer, 28 O. S. 521; 
State, ex rel., v. Ferris, 53 O. S, 314; Express Co. v. State, 55 O. S. 69. 

The legislature may alter charters of corporations in effect by 
subsequently enacting statutes permitting consolidation: Dunham v. 
Kauffman, 10 O. N. P. (N.S.) 49, 20 O. D. (N.P.) 274. 

Statutes giving a gas company power to supply gas, even If 
construed as giving an exclusive privilege, are subject to attention 
by the legislative will, as this constitutional provision becomes a 
part of the charter: Coke Co. v. Hamilton, 146 U. S. 258, 7 O. F. D. 
358 

' ' 2 ' Debates, 231, 326, 466-468, 476-483, 485-493, 498-550, 556-569, 

688-693, 806, 826, 856, 870. 

IV. NO IRREVOCABLE SPECIAL PRIVILEGES. 

The legislature, in granting charters to railroad companies, did 
not violate this provision against special privileges: State, ex rel., 
V. Sherman, 22 O. S. 411. 

A railroad corporation formed by a special statute prior to the 
adoption of the constitution of 1851, which takes advantage of a 
general law authorizing consolidation, which is passed after such 
constitution is adopted, makes itself subject to the provisions of such 
constitution (see this section and Art. XIII., § 2), and is subject to the 
general power of the legislature to regulate rates of fare: Shields 
V. State, 26 O. S. 86 [affirmed. Shields v. State, 95 U. S. 319, 4 O. F. D. 
471]. 

A railway corporation which is subject to the provision of the 
present constitution and which is required by a statute passed after 
it is incorporated, to construct and maintain cattle guards at the 
crossings of its track with public highways, is not entitled to com¬ 
pensation for making or maintaining such cattle guards: Railway 
v. Sharpe, 38 O. S. 150. 

A franchise of a street railway company, which was granted at 
a time when there was no statutory provision fixing its duration, 
is said to be perpetual if not terminated by the legislature; the 
legislature, however, having power to terminate it: State, ex rel., v. 
Railway, 1 O. C. C. (N.S.) 145, 14 O. C. D. 609 [affirmed, without 
report, in State, ex rel., v. Railway, 73 O. S. 363]; see, to same effect. 
Railway v. Cleveland, 137 Fed. Ill, 14 O. F. D. 513. 

If an ordinance already in effect requires a street railway to 
pave twelve feet of the street, a subsequent ordinance may require it 
to pave sixteen feet: Cleveland v. Railroad, 1 O. N. P. 413, 3 O. D. 
(N.P.) 92. 

In connection with this section is to be construed § 2, Art. XIII, 
which declares that “corporations may be formed under general laws; 
but all such laws may, from time to time, be altered or repealed”; 
State, ex rel., v. Cincinnati, 47 O. S. 52. 

While corporations with valuable franchises may be formed under 
general laws, all such laws may be altered or repealed: Railway v. 
Telegraph Association, 48 O. S. 390 

Section 3. The people have the right to assemble to¬ 
gether, in a peaceable manner, to consult for their common good; 
to instruct their representatives; and to petition the general as¬ 
sembly for the redress of grievances. {See Const. 1802 , Art. 

VIIC § 19 .) 

See Const. 1802, Art. VIII. § 19. 

The right of assembly can not be used to carry out an unlawful 
and criminal conspiracy to obstruct the operation of a railroad: Thomas 
V. Railway, 62 Fed. 803, 8 O. F. D. 263. 

It was said in Manufacturing Co. v. Labor Union, 12 O. D. (N.P.) 
748, that some injunctions against labor unions and their right to 
congregate have violated this provision of the constitution. 

2 Debates, 231, 326, 462, 806, 826, 856, 870. 

; Section 4. The people have the right to bear arms for 
their defense and security; but standing armies, in time of peace, 
are dangerous to liberty, and shall not be kept up; and the mil- 



127 

CONSTITUTION OF THE STx\TE OF OHIO OF 1851. Art.I, § 5. 


itary shall be in strict subordination to the civil power. {See 
Const. i 8 o 2 . Art. VIII, § 20 .) 

See Const. 1802, Art VIII, § 20. 

This clause in the constitution clearly shows the light in which 
the framers of this instrument viewed a resort to mercenary troops 
in any degree independent of the civil authority. They held such a 
force dangerous to liberty, and that unalterably and forever to 
regard it so, was a great and essential principle of liberty and free 
government. The determination was to constitute the militia, as only 
a portion of the executive authority, upon whom was devolved the 
duty of executing the laws and protecting its ministers from violence. 

It is declared a duty equally essential to liberty to regard even the 
militia a military force, to be forever kept under strict subordination 
to the civil authority. The fathers of the Republic had studied 
human nature deeply. Devoted to free institutions, they were jealous 
of any influence tending to their destruction. Hence the emphatic 
annunciation of the essential principle, that the military should be 
kept under strict subordination to the civil authority. Not a word is 
found in the constitution giving countenance to the opinion sometimes 
expressed, and more frequently felt, that the militia or the military 
force, instead of being a means to be employed by the executive de¬ 
partment in executing the important duty of executing the laws, are 
a distinct department of the government, equal to either of the others, 
and independent of their control”: State v. Coulter, W. 421. 

It is a contempt of court to muster a militia company, with music, 
so near the court as to disturb its proceedings. The military must 
be subordinate to the civil power, or the country ceases to be free: 

State V. Goff, W. 78. 

Offlcers of the militia are liable in contempt if they refuse to stop 
drilling their troops with music and firing, so near to the courthouse 
as to interfere with the business of the court; State v. Coulter, W. 

421. 

2 Debates, 231, 326, 462, 806, 826, 8.56, 870. 

Section 5. The right of trial by jury shall be inviolate, Trial by jury, 
except that, in civil cases, laws may be passed to authorize the 
rendering of a verdict by the concurrence of not less than three- 
fourths of the jury. (As amended September 3 , 1912 .) 

Vote: “Yes,” 345,686; “No,” 203,953. 

Original § 5 read as follows; “Sec. 5. [Trial by jury.] The right 
of trial by jury shall be inviolate. (See Const. 1802, Art. VIII, § 8.) 


I. What constitutes jury. H. Appropriation proceed- 

II. Nature of right of jury. ings. 

Ill, Specific illii.stration. ' C. Other cases. 

A. Fine or imprisonment. IV. Waiver. 

I. WHAT CONSTITUTES JURY. 

See Const. 1802, Art. VIII, § 8. 

See Art. I, §10, note 5; Art. I, §19, note 7; Art. XIII, §5, note 6. 

A jury is defined to be “a convenient number of citizens, selected 
and impartial, who, on particular occasions, or in particular causes, are 
vested with discretionary powers to try the truth of facts, on which 
depend the property, the liberty, the reputation and the lives of their 
fellow citizens.” It is “a certain number of men sworn to inquire of 
and try a matter of fact, and declare the truth upon such evidence as 
shall be given them in a cause; and they are sworn jiidges upon evi¬ 
dence in matters of fact.” “The occupying claimant laws of Ohio 
came under the consideration of the supreme court of the United 
States in the case of the Bank of Hamilton v. Dudley, 2 Peters, 133. In 
that case the court concede that the state has the power to secure to 
claimants of lands their possessions until paid for lasting improve¬ 
ments made by them on the land, but denies the power of the state, 
by its enactments, to ‘change, radically, the mode of proceeding- pre¬ 
scribed for the courts of the United States, or direct those courts, in a 
trial at common law, to appoint commissioners for the decision of 
questions which a court of common law must submit to a jury.’ Such 
a proceeding, the court suppose, would conflict with the clause in the 
constitution of the United States which declares that ‘in suits at 
common law, where the value in controversy shall exceed twenty 
dollars, the right of trial by jury shall be preserved.’ It appears to us 
obvious that the provision of the constitution just quoted applies only 
to the courts of the United States, and does not prescribe a rule of 
practice for the courts of a state. . . . Indeed, we are unable to 
discover wherein the law of Ohio conflicts with the constitution of 




128 


Art.I, §5. CONSTITUTION OF THE STATE OF OHIO OF 1851. 


Ohio. Were we to decide otherwise, there is a series of legislative 
acts, commencing with the organization of our government and con¬ 
tinuing to this time, that we should be compelled to declare void. We 
allude to enactments providing juries in cases of forcible entry and 
detainer, for the trial of the rights of property, . . . for inquiry 

in cases of idiocy and lunacy,” etc.: Hunt v. McMahon, 5 O. 132. 

The term “jury,” as used originally in the constitution, implied 
twelve men who must unanimously concur in a verdict in order to 
render one. Accordingly, a statute which provided for a jury of six 
men in the probate court did not provide a jury within the meaning of 
the constitutional provision: Work v. State, 2 O. S. 296. 

In a case where a jury is necessary, a trial in the probate court 
before a jury of six men is in violation of the constitution: and the 
prosecuting witness can not be compelled to pay the costs of such 
oroceeding: Sovereign v. State, 4 O. S. 489. 

II. NATLRE OF RIGHT OP JURY. 

By the first of these sections (Art. I, § 5), the right of jury trial 
is recognized to exist, and its continuance unimpeached is provided 
for. By the last (Art. T, § 10) this right is declared to belong to every 
person accused of any crime or offense, in any court of the state. 
What, then is this right? It is nowhere defined or described in the 
constitution. It is spoken of as something already sufficiently under¬ 
stood and referred to as a matter already familiar to the public mind. 
The same article furnishes other examples of the same generality of 
expression. By § 8: ‘‘The privilege of the writ of habeas corpus shall 
not be suspended unless in case of rebellion or invasion, the public 
safety require it.” In what does the privilege of this great bulwark 
of personal liberty consist? The constitution furnishes no answer, 
nor was it necessary that it should. If ages of uninterrupted use can 
give significance to language,"the right of jury trial and the habeas 
corpus stand as representatives of ideas as certain and definite as any 
other in the whole range of legal learning. The institution of the jury 
referred to in our constitution, and its benefits secured to every 
person accused of crime, is precisely the same in every substantial 
respect as that recognized in the great charter and its benefits secured 
to the freemen of England, and again and again acknowledged in 
fundamental compacts as the great safeguard of life, liberty and 
property: the same, brought to this continent by our forefathers, and 
perseveringly claimed as their birthright, in every contest with arbi¬ 
trary power, and, finally, an invasion of its privileges prominently 
assigned as one of the causes which was to justify them, in the eyes 
of mankind, in waging the contest which resulted in independence. 
Nor did their affection for it then diminish or cool. They made it a 
cornerstone in erecting the state governments; and after the adoption 
of the federal constitution, without a provision securing it, thej'- did 
not rest satisfied until they had proposed and carried an amendment, 
giving to every person accused of crime in the courts of the Union, 
‘‘the right to a speedy and public trial, by an impartial jury of the 
state and district wherein the crime shall have been committed.” 
In the ordinance of July 13, 1787, which first extended civil government 
over the territory northwest of the river Ohio, it was made an unal¬ 
terable article of compact that ‘‘the inhabitants of the said territory 
shall always be entitled to the benefit of the writ of habeas corpus and 
of the trial by jury.” Upon the organization of the state government 
in 1802, provisions, substantially the same as those in the present con¬ 
stitution, were inserted in the bill of rights. It thxis appears that 
persons accused of crime have, for every moment of time since civil 
government existed within the territory of this state, by fundamental 
laws, been secured in the right of trial by jury. An institution that 
has so long stood the trying tests of time and experience, that has 
so long been guarded with scrupulous care, and commanded the 
admiration of so many of the wise and good, justly demands our 
jealous scrutiny when innovations are attempted to be made upon it. 
It remains to consider what were the distinguishing features of this 
mode of trial as it existed at common law, and as it has always been 
known and used in this country. . . . Our opinion is that the 
essential and distinguishing features of the trial by jury, as known 
at common law, and generally, if not universally, adopted in this 
country, were intended to be preserved, and its benefits secured to the 
accused in all criminal cases, by the constitutional provisions referred 
to; that it is beyond the power of the general assembly to impair the 
right, or materially change its character: that the number of jurors 
can not be diminished, or a verdict authorized short of a unanimous 
concurrence of all the jurors. . . . We do not intend to imply a 

doubt of the constitutionality of the act allowing juries before justices 
of the peace, composed of six men. Wherever facts are to be found in 
any proceeding, in which a jury was not required by the common law, 
a jury of any number may be authorized within the discretion of the 
legislative body. Juries did not belong to these inferior courts at the 



129 


CONSTITUTION OP THE STATE OP OHIO OP 1851. 


common law, and so long" as an appeal is provided for the common law 
courts from their determinations, it is clear no constitutional objec¬ 
tion can arise, whether facts are found by the magistrate or by the 
aid of a jury of any number of men; Work v. State, 2 O. S. 296. 

The act of May 1, 1854, “to extend the jurisdiction of justices of 
the peace,” etc. (52 O. L. 100), is not unconstitutional, although it 
makes no provision for the trial, by a jury of twelve men, of actions 
commenced in virtue of such extended jurisdiction. “It is true that 
the act may subject the defendant to a trial before a justice of the 
peace before he can obtain a trial by jury; still, the right of trial by 
jury remains unimpaired and perfect. The mode of obtaining it may 
be more inconvenient than heretofore. But on this subject a dis¬ 
cretion is given to the legislature, which must be so far abused as to 
be clearly violative of the substantial right, before this court can 
interfere to nullify legislative action”: Norton v. McLeary, 8 O. S. 205. 

Where a case is neither a criminal prosecution nor a proceeding 
according to common law, in which trial by jury is guaranteed, it is 
not error to deprive a man of a jury trial; Prescott v. State, 19 O. S. 
184. 

The right intended to be secured by this section was the right as 
recognized by the common law, and includes an action for money 
only: Dunn v. Kanmacher, 26 O. S. 497. 

The three most important constitutional rights of one accused of 
felony are (1) trial by jury, (2) compulsory process for witnesses, and 
(3) assistance of counsel: Dille v. State, 34 O. S. 617. 

The right to trial by jury depends on the nature of the relief 
sought, and can not be abridged, but it may be extended: Gunsaullus 
V. Pettit, 46 O. S. 27. 

This section has been repeatedly held not to enlarge or modify 
the right of trial by jury as it existed prior to the adoption of the 
constitution: Terry v. State, 3 O. C. C. (N.S.) 593, 14 O. C. D. 111. 

A jury from a city may try an accused for an offense committed 
outside of the city, but within the jurisdiction of the court; Fendrick 
V. State, 17 O. D. (N.P.) 73, 4 O. L. R. 350 [affirmed. State v. Fendrick, 
77 O. S. 298]. 

This section was intended to guarantee the right of trial by jury 
as it existed under the constitution of 1802: Ames v. State, 11 6. N. P. 
(N.S.) 385. 


III. SPECIFIC ILCIJSTRATION. 

A. Fine or imprisonment. This section does not apply to prosecu¬ 
tion under ordinances which authorize a penalty by fine only upon a 
summary conviction under a police regulation, although payment ma> 
be enforced by imprisonment; Fletcher v. State, 18 O. C. C. 674, 7 
O. C. D. 316; Wells v. State, 1 O. N. P. (N.S.) 309, 14 O. D. (N.P.) 196; 
see, to same effect. Ward v. State, 5 O. D. (N.P.) 230. 

A mayor may refuse a jury trial to one charged with keeping a 
saloon open on Sunday, where the penalty is fine only, even though 
imprisonment may be used to enforce payment: Schlagel v. State, 
3 O. N. P. (N.S.) 429, 16 O. D. (N.P.) 295. 

A statute which authorizes a penalty by fine only, upon a sum¬ 
mary conviction under a police regulation, or of an immoral practice 
prohibited by law, although imprisonment, as a means of enforcing 
payment of the fine, is authorized, is not in conflict with either §§ 5 or 
10 of Art. I, of the constitution, on the ground that no provision is 
made for a trial by jury in such cases: Inwood v. State, 42 O. S. 186. 

B. Appropriation proceetling.H. The assessment of the value of 
property appropriated for public purposes is not one of the cases for 
which trial by jury is secured by this provision of the constitution. 
“The only way in which we can ascertain the true meaning of this 
clause is by making inquiry whether, before the constitution was 
framed, jury trial was known in such cases in the territory of Ohio. 

On what principle is it that juries are dispensed with in the 
greater number of our courts—in courts of equity, courts of admiralty, 
courts martial and courts of justices of the peace? Magna charta 
declares that no man shall be deprived of life, liberty or property, but 
by the judgment of his peers or the law of the land. Mr. Sullivan 
(§§ 39, 40) remarks that, as juries were unknown in those courts 
before the great charter, their disuse constituted a part of the law of 
the land; and therefore, although that charter was the first great 
instrument which solemnly guaranteed jury trial to Englishmen, yet 
it has never been supposed that that institution constituted a part of 
the machinery of those courts. ... He who will take the trouble 
to examine our laws, as well before as since the formation of our 
constitution, will find that they are uniformly regarded as an append¬ 
age to the courts only. No juries are ever mentioned but such as are 
auxiliary to the administration of justice in some court. 
Objections of this kind should ever be listened to with attention and 


Art.I, § 5. 




130 


Art.I, §5. CONSTITUTION OF THE STATE OP OHIO OP 1851. 


earnestness; for, although, to decide upon the constitutionality of a 
law, is a duty which no judge should court, yet it is. also one from 
which no judge should shrink”: Willyard v. Hamilton, 7 O. (pt. 2) 111, 
(Art. I, §19, of this constitution secures trial by jury in such cases.) 

An act for the appropriation of land for roads does not violate 
this section if it provides for an appeal to probate court where a jury 
may be had: Reckner v. Warner, 22 O. S. 275. 

In condemnation of land for a ditch, the compensation to the 
owner must be determined by a jury, but not the question of route or 
benefit of ditch: Emig v. Commissioners, 5 O. N. P. 471, 5 O. D. (N.P.) 
459. 

Legislature may determine the method of the appropriation of land 
by the city, so long as it does not preclude a jury to assess the com¬ 
pensation: Cincinnati v. Mueller, 8 O. N. P, (N.S.) 195, 19 O. D. (N.P.) 
533. 

The right of a turnpike company to take toll is “property” which 
can not be taken away without a jury trial, and statute providing a 
forfeiture if road is not kept in repair is unconstitutional: Turnpike 
Co. V. Waechter, 2 O. C. C. (N.S.) 21, 15 O. C. D. 605. 

The act of April 20, 1874 (71 v. 146), gave a penalty of one hun¬ 
dred and fifty dollars to the party aggrieved by a railroad corporation 
for overcharging for the transportation of passengers or property. 
It was held that where action for penalty stood for judgment on the 
petition, it was not error to refuse to impanel a jury to assess dam¬ 
ages: Railroad v. Cook, 37 O. S. 265. 

The act to secure the compulsory education of children, and in 
extreme cases to commit without trial by jury, is valid and consti¬ 
tutional: Quigley v. State, 5 O. C. C. 638, 3 O. C. D. 310 [affirmed by 
supreme court, withou4^ report, Quigley v. State, 27 Bull. 332], 

A statute which authorizes commitments to a reform farm or an 
industrial school without the intervention of a jury is not unconsti¬ 
tutional by reason of this provision: Prescott v. State, 19 O. S. 184; 
Millard v. Commissioners, 5 O. C. C. (N.S.) 145, 7 O. C. D. 115. 

A statute which authorized a commitment of a homeless child to 
a house of refuge was held to be valid in House of Refuge v. Ryan, 
37 O. S. 197. 

A statute providing that if a corporation abandons proceedings to 
appropriate land, a judgment for attorney fees may be entered, is 
unconstitutional in taking judgment for wrong without a jury trial: 
Gas Co. V. Wiler, 1 O. N. P. (N.S.) 277, 14 O. D. (N.P.) 164. 

C. Other case.s. The provisions of the act of January 9, 1871 
(68 V. 6), conferring jurisdiction upon courts of common pleas to 
appoint guardians of the property of persons incapable of taking care 
of and preserving their property, by reason of intemperance and 
habitual drunkenness, are not in violation of the provisions of this 
section: Hagany v. Cohnon, 29 O. S. 82. 

An act giving probate court power to declare a toll road vacated 
and abandoned and to become a free road without intervention of a 
jury, is unconstitutional: Turnpike Co. v. Parks, 50 O. S. 568 [ap¬ 
proved and followed in Turnpike Co. v. Gay, 50 O. S. 583]. 

A law requiring fire escapes on buildings, and for violation, per¬ 
mitting an injunction against use of the building, is not void because 
it does not provide for trial by jury, but is void if not of uniform 
operation in the state: Cincinnati v. Steinkamp, 54 O, S. 284 [affirming 
Cincinnati v. Steinkamp, 9 O. C. C. 178, 6 O. C. D. 85]. 

One who is charged with contempt of court for refusing to answer 
a question as a witness, is not entitled under this provision to a trial 
by jury: Ammon v. Johnson, 3 O. C. C. 263, 2 O. C. D. 149. 

The constitution of 1851 changes a motion for a nonsuit to a 
motion to take the case from the jury; and this is proper where there 
i.s no dispute in regard to the facts: Beucker v. Baker, 21 O. C. C. 
540, 11 O. C. D. 642. 

This section does not render invalid the statute which creates the 
the State Liability Board of awards and confers powers thereon (G. C. 
§ 1465-37, et seq.; 102 v. 525): State, ex rel., v. Creamer, 85 O. S. 349. 

IV. WAIVER. 

A provision that, on a plea other than “guilty,” if the defendant 
did not demand a trial by jury, the probate judge should proceed to 
try the issue, was held valid: Daily v. State, 4 O. S. 57. 

A provision which gives to the accused the right to have a trial 
by jury, or not, at his election, does not violate this provision: Dilling¬ 
ham V. State, 5 O. S. 280. 

The constitutional provision that guarantees to the accused a 
trial by jury does not prohibit adopting any other mode of trial upon 
consent of the accused: Craig v. State, 49 O. S. 415. 

If parties can have a jury trial, but do not because they do not 
ask for it, the jurisdiction of the probate court can not be defeated on 
such ground: Doan v. Biteley, 49 O. S. 588. 



131 


CONSTITUTION OF THE STATE OP OHIO OF 1851. Art.I, § 6 . 


The waiver of a trial by jury upon an action arising on a con¬ 
tract, when the opposite party or his attorney does not appear, is 
valid: Railway v. Construction Co., 49 O. S. 681. 

Under a statute which provided for trial by jury, if the jury was 
not wanted, the accused must affirmatively waive his right to a jury 
before he can be tried without one; and his failure to demand a jury 
is said to be not such waiver: Simmons v. State, 75 O. S. 346. 

A statute which imposes a liability upon a county for mob vio¬ 
lence within its limits is valid and constitutional, and does not inter¬ 
fere with the right of trial by jury: Commissioners v. Church, 62 
O. S. 318 [affirming Mitchell v. Commissioners, 10 O. C. D. 801, which 
reversed Mitchell v. Commissioners, 6 O. N. P. 158, 5 O. D. (N.P.) 262, 
and reversing Caldwell v. Commissioners, 15 O. C. C. 167, 8 O. C. D. 56, 
which affirmed Caldwell v. Commissioners, 4 O. N. P. 249, 6 O. D. (N.P.) 
367]. 

This section does not render invalid G. C. §§ 1249, et seq., which 
authorize the state board of health to require a municipal corporation 
to construct a sewage system. State Board of Health v. Greenville, 86 
O. S. 1 [reversing Greenville v. Demorest, 14 O. C. C. (N.S.) 113]. 

A waiver of trial by jury in an assault and battery case should, 
as a matter of safety, be noted upon the record: Evans v. State, 3 
O. C. C. (N.S.) 23, 13 O. C. D. 103 [affirmed, without report, in Evans 
V. State, 68 O. S. 700]. 

2 Debates, 231, 326, 327, 462, 806, 826, 857, 870. 


Section 6. There shall be no slavery in this state; nor of slavery and 
involuntary servitude, unless for the punishment of crime. {See involuntary scr- 
Const, 1802 , Art. VIII, § 2 .) 

See Const. 1802, Art. VIII, § 2. 

This provision was incorporated into this constitution from the 
ordinance of 1787: Strader v. Graham, 10 How. 82. 

2 Debates, 231, 327, 806, 826, 857, 870. 


Section 7. All men have a natural and indefeasible right 
to worship Almighty God according to the dictates of their own 
conscience. No person shall be compelled to attend, erect, 
or support any place of worship, or maintain any form of wor¬ 
ship, against his consent; and no preference shall be given, by 
law, to any religious society; nor shall any interference with the 
rights of conscience be permitted. No religious test shall be 
required, as a qualification for office, nor shall any person be 
incompetent to be a witness on account of his religious belief; 
but nothing herein shall be construed to dispense with oaths 
and affirmations. Religion, morality, and knowledge, however, 
being essential to good government, it shall be the duty of the 
general assembly to pass suitable laws to protect every religious 
denomination in the peaceable enjoyment of its own mode of 
public worship, and to encourage schools and the means of in¬ 
struction. {See Const. 1802 , Art. VIII, §§ 3 , 25 .) 

See Const. 1802, Art. VIII, §§ 3, 25. 


Of the rights of 
conscience; the 
necessity of 
religion and 
knowledge. 


I. Cited. IV. Rellgoii.s exercLses In pub- 

II. Right of eonsoienee. lie schools. 

III. Sunday observance. V. Encouragement of schools. 

I. CITED. 

State, ex rel., v. Shearer, 46 O. S. 275; State, ex rel., v. Toledo, 
3 O. C. C. (N.S.) 468, 13 O. C. D. 327; State v. Board of Education, 8 O. N. 
P. 186, 11 O. D. (N.P.) 422; Mooney v. Bell, 8 O. N. P. 658, 11 O. D. 
(N.P.) 786; Reid v. Board of Education, 6 O. N. P. (N.S.) 526, 16 O. D. 
(N.P.) 414; Board of Education v. Sawyer, 7 O. N. P. (N.S.) 401, 19 
O. D. (N.P.) 1. 

II. RIGHT OP CONSCIENCE. 

“Neither Christianity nor any other system of religion is a part 
of the law of this state. We sometimes hear it said that all religions 
are tolerated in Ohio; but the expression is not strictly accurate; 
much less accurate is it to say that one religion is a part of our 
law, and all others only tolerated. It is not by mere toleration that 




132 


Art.I, § 7. CONSTITUTION OP THE STATE OP OHIO OP 1851. 


every individual here is protected in his belief or disbelief. He re¬ 
poses not upon the leniency of government, or the liberality of any 
class or sect of men, but upon his natural, indefeasible rights of con¬ 
science, which, in the language of the constitution, are beyond the 
control or interference of any human authority. We have no union 
of church and state, nor has our government ever been vested with 
authority to enforce any religious observance simply because it is 
religious. Of course, it is no objection, but on the contrary, is a 
high recommendation to a legislative enactment, based upon justice or 
public policy, that it is found to coincide with the precepts of a pure 
religion; but the fact is nevertheless true, that the power to make 
the law rests in the legislative control over things temporal, and not 
over things spiritual. Thus, the statute prohibiting common labor 
on the Sabbath, (29 O. L. 161), could not stand for a moment as the 
law of this state, if its sole foundation was the Christian duty of 
keeping that day holy, and its sole motive to enforce the observance 
of that duty. For no power over things merely spiritual has ever 
been delegated to the government, while any preference of one religion 
over another, as the statute would give upon the above hypothesis, 
is directly prohibited by the constitution. Acts evil in their nature, 
or dangerous to the public welfare, may be forbidden and punished, 
though sanctioned by one religion and prohibited by another; but this 
creates no preference whatever, for they would be equally forbidden 
and punished if all religions permitted them. Thus, no plea of his 
religion could shield a murderer, ravisher, or bigamist; for community 
would be at the mercy of superstition, if such crimes as these could 
be committed with impunity, because sanctioned by some religious 
delusion”: Bloom v. Richards, 2 O. S. 387. 

The giving of Christian science treatment for a fee, for the cure 
of disease, is practicing medicine within the meaning of the statutes 
regulating such practice in this state. The statute making it a 
misdemeanor to give such treatment for a fee is not an interference 
with the rights of conscience and of worship, conserved by § 7 of the 
bill of rights, and is not on that ground unconstitutional: State v. 
Marble, 72 O. S. 21. 

Legislation prohibiting anyone from treating a disease for a 
fee, excepting such persons as have prescribed qualifications, is a 
valid exercise of the police power of the state, and is constitutional: 
State V. Marble, 72 O. S. 21. 

The act regulating the practice of medicine in this state exacts 
reasonable qualifications and excludes no one possessing them, and 
it is not void as discriminating against Christian scientists in that 
it prescribes that anyone possessing certain qualifications may 
practice osteopathy and does not make especial provision for those 
who wish to practice Christian science: State v. Marble, 72 O. S. 21. 

No one is rendered incompetent to be a witness on account of 
religious belief; nevertheless, every one offered as a witness in a 
court must take an oath or affirmation before giving testimony; Clin¬ 
ton V. State, 33 O. S. 27. 

A person who believes in the existence of a Supreme Being, who 
will, either in this life or the life to come, inflict punishment for 
false swearing, may be sworn as a witness: Clinton v. State, 33 O. S 
27. 


III. SUNDAY OBSERVANCE. 

A statute which was construed as making invalid sales of merchan¬ 
dise on Sunday, was held to be constitutional in Sellers v. Dugan 
18 O. 489. 

Neither Christianity, nor any other system of religion, is a part 
of the law of this state. We sometimes hear it said that all religions 

are tolerated in Ohio; but the expression is not strictly accurate_ 

much less accurate is it to say, that one religion is a part of our 
law, and all others only tolerated. It is not by mere toleration that 
every individual here is protected in his belief or disbelief. He reposes 
not upon the leniency of government, or the liberality of any class 
or sect of men, but upon his natural indefeasible rights of conscience, 
which, in the language of the constitution, are beyond the control 
or interference of any human authority. We have no union of church 
and state, nor has our government ever been vested with authority 
to enforce any religious observance, simply because it is religious. 

Of course, it is no objection, but, on the contrary, is a high recom¬ 
mendation, to a legislative enactment, based upon justice or public 
policy, that it is found to coincide with the precepts of a pure religion; 
but the fact is nevertheless true, that the power to make the law 
rests in the legislative control over things temporal and not over 
things spiritual. Thus the statute upon which the defendant relies, 
prohibiting common labor on the Sabbath, could not stand for a 
moment as a law of this state, if its sole foundation was the Christian 
duty of keeping that day holy, and its sole motive to enforce the 



133 


CONSTITUTION OP THE STATE OP OHIO OP 1851. 


observance of that duty. For no power over things merely spiritual, 
has ever been delegated to the government, while any preference of 
one religion over another, as the statute would give upon the above 
hypothesis, is directly prohibited by the constitution. Acts evil in 
their nature, or dangerous to the public welfare, may be forbidden 
and punished, though sanctioned by one religion and prohibited by 
another; but this creates no preference whatever, for they would be 
equally forbidden and punished if all religions permitted them. Thus, 
no plea of his religion could shield a murderer, ravisher, or bigamist; 
for community would be at the mercy of superstition, if such crimes 
as these could be committed with impunity, because sanctioned by 
some religious delusion. 

We are, then, to regard the statute under consideration as a 
mere municipal or police regulation, whose validity is neither strength¬ 
ened nor weakened by the fact that the day of rest it enjoins is the 
Sabbath day. Wisdom requires that men should refrain from labor at 
least one day in seven, and the advantages of having the day of rest 
fixed, and so fixed as to happen at regularly recurring intervals, are too 
obvious to be overlooked It was within the constitutional compe¬ 
tency of the general assembly to require this cessation of labor, and 
to name the day of rest. Tt did so by the act referred to, and, in 
accordance with the feelings of a majority of the people, the Christian 
Sabbath was very properly selected. But. regarded merely as an exer¬ 
tion of legislative authority, the act would have had neither more 
nor less validity had any other day been adopted; Bloom v. Richards, 
2 O. S. 387. 

Legally considered, our Sunday act is merely a civil regulation, 
having no connection with religion, and founded on principles of 
public policy alone: McGatrick v. Wason, 4 O. S. 566. 

A statute making it an offense to play ball on Sunday neither 
requires nor prohibits any religious observance and does not violate 
this section; State v. Powell, 58 O. S. 324; see, to same effect. State 
V. Goode, 5 O. N. P. 179, 5 O. D. (N.P.) 281; State v. Black. 5 O. N. P. 
179. 


IV. RELIGIOUS EXERCISES IN PUBLIC SCHOOLS. 

The constitution of the state does not enjoin or require religious 
instruction, or the reading of reli.gious books, in the public schools 
of the state; Cincinnati v. Minor, 23 O. S. 241. 

The legislature having placed the management of the public 
schools under the exclusive control of directors, trustees, and boards 
of education, the courts have no rightful authority to interfere by 
directing w'hat instruction shall be given, or what books shall be read 
therein; Cincinnati v. Minor, 23 O. S. 211. 

The courts have no power to interfere against a regulation adopted 
bj' a board of education requiring that the Bible be read in schools on 
the plea that it interferes with conscience; Nessle v. Hum, 1 O. N. P. 
1^0, 2 O. D. (N.P.) 60. 

A school-teacher may be discharged for breach of contract if she 
reads the Bible in the school room contrary to the orders of the 

school board which has its authority from the legislature: Board of 

Education v. Paul, 7 O. N. P. 58, 10 O. D. (N.P.) 17. 

V. ENCOURAGEMENT OF SCHOOLS. 

The policy of encouraging schools was expressed in the ordinance 
of 1787, and reasserted in the constitution of 1802, Art. VITT, § 3: 

Theological Seminary v. Little, 2 O. C. C. (N.S.) 540, 15 O. C. D. 609. 

“The system of public education in Ohio is the creature of the 
constitution and statutory laws of the state. . . . It is left to the 

discretion of the general assembly, in the exercise of the general legisla¬ 
tive power conferred upon it to determine what laws are ‘suitable’ to 
secure the organization and management of the contemplated system 
of common schools, without express restriction, except that ‘no religious 
or other sect or sects shall ever have any exclusive right to, or control 
of, any part of the school funds of the state’’’ (Art. VI, §2): State, ex 
rel., V. McCann, 21 O. S. 198. 

A compulsory education law is valid; Quigley v. State, 5 O. C. C. 
638, 3 O. C. D. 310 [affirmed, without report, in Quigley v. State, 27 
Bull. 332]. 

General Code § 7686, authorizing and empowering the board of educa¬ 
tion of each school district, “to make and enforce such rules and regula¬ 
tions to secure the vaccination of, and to prevent the spread of 
smallpox among the pupils attending or eligible to.attend the schools 
of the district, as in its opinion the safety and interests of the public 
require,’’ is a valid enactment, not repugnant to the constitution of 
the state of Ohio, nor violative of the fourteenth amendment to the 
constitution of the United States. And under the power thereby con¬ 
ferred, boards of education, in the exercise of a sound discretion, may 


Art.I,§7. 



134 


Art.I,§8. CONSTITUTION OP THE STATE OP OHIO OP 1851. 


exclude from the public schools all children who have not been 
vaccinated. The enactment of said statute by the general assembly 
was but a reasonable exercise of the police power of the state, and 
under its provisions, the validity of the action taken by a board of 
education in excluding from the public schools all children who have 
not been vaccinated, or who do not furnish a physician’s certificate 
excusing them from vaccination, does not depend upon the actual 
existence of smallpox in the school district or community, nor upon 
the apprehended epidemic of that disease. 

Whether a rule or regulation adopted by the board of education 
under favor of the provisions of above G. C. § 7686, is a reasonable 
rule or regulation, is to be judged of in the first instance by the 
board of education, and the courts will not interfere unless it be 
clearly shown that there has been an abuse of official discretion: 
State, ex rel., v. Board of Education, 76 O. S. 297. 

Under this section school lands may be exempted from taxation: 
Martindill v. Sanger, 8 O. N. P. 506, 11 O. D. (N.P.) 727. 

The act of March 21, 1881, appropriating money to repair the build¬ 
ings of the Ohio university, was passed by the general assembly in 
the discharge of the duty imposed upon it by this section, viz.; to pass 
suitable laws to encourage schools and the means of instruction: State, 
ex rel., v. Oglevee, 37 O. S. 1. 

In pursuance of the last clause, the legislature has from time 
to time provided for the organization of teachers’ institutes: Burton 
V. Board of Education, 5 O. N. P. (N.S.) 294, 18 O. D. (N.P.) 67. 

No injury or unreasonable discrimination is caused by special rates 
to school children on "their way to and from school, secured from a 
railroad: Shryock v. Railway, 6 O. L. R. 19, 53 Bull. 86. 

A statute providing separate schools for colored children is con¬ 
stitutional; State V. Cincinnati, 19 O. 178; see, to the same effect. Van 
Camp V. Board of Education, 9 O. S. 406; State v. McCann, 21 O. S. 198. 

General Code § 4862, which permits women otherwise properly quali¬ 
fied, to vote and to be voted for, for member of the board of education, 
is valid: State, ex rel., v. Columbus, 9 O. C. C. 134, 6 O. C. D. 36 [affirmed, 
without report, in Mills v. Board of Elections, 54 O. S. 631]. 

2 Debates, 231, 327, 328, 462, 463, 466, 469, 806, 826, 857, 870. 


Of the writ of 
habeas corpus. 


Section 8 . The privilege of the writ of habeas corpus 
shall not be suspended, unless, in cases of rebellion or invasion, 
the public safety require it. (See Const. 1802 , Art. VIII, § 12 .) 

See Const. 1802, Art. VIII, § 12. 

“In what does the privilege of this great bulwark of personal 
liberty consist? The constitution furnishes no answer, nor was it 
necessary that it should. If ages of uninterrupted use can give 
sit;nificance to language, the right of jury trial and the habeas corpus 
stand as representatives of ideas as certain and definite as any other 
in the whole range of legal learning’’: Work v. State, 2 O. S. 297. 

“The ‘privilege’ of the writ of habeas corpus is secured by our 
national and state constitutions to every citizen. It can only be 
suspended or withheld in cases of rebellion or invasion, when the 
public safety may require it. Subject to that reserved right of the 
national or state governments, to be employed in the extreme cases 
named, each citizen is vested with this ancient and sacred shield of 
liberty. To the judicial department of the government is delegated 
the duty of enforcing applications for its invaluable benefits, when 
properly demanded. Our statute relating to the subject gives to the 
judges of the courts, separately at chambers, jurisdiction of the sub¬ 
ject-matter in all cases, except when the person is convicted of a crime 
or offense, and stands committed for it; or where he is committed for 
treason or felony, the punishment whereof is capital, plainly expressed 
in the warrant of commitment. Not only is such jurisdiction given 
to the judges, but when the person who is unlawfully deprived of his 
liberty, makes his application to one of them, as provided in the law, 
for the benefits of the writ, it is made the duty of such judge forthwith 
to issue it. The exempted cases of convicted persons who stand 
cc-mmitted, and of treason or felony, punishable capitally, are the only 
restrictions upon the power of a single judge. The common law courts 
are clothed with power adequate for those and for all other cases which 
may arise. In the exercise of this power by a single judge, or a 
court, every case of unlawful imprisonment may be reached and 
examined into. . . . ‘No matter where or how the chaims of captivity 

were forged, the ppwer of the judiciary, in this state, is adequate to 
crumble them to the dust, if an individual is deprived of his liberty, 
contrary to the law of the land’ ’’: Ex parte Collier, 6 O. S. 55. 

A habeas corpus can not be used as a summary process to review 
errors in the sentence of a court of competent jurisdiction. If the 
sentence is void, habeas corpus lies; if voidable or erroneous, a writ 
of error is the appropriate remedy: Ex parte Shaw, 7 O. S. 81. 



]35 


CONSTITUTION OP THE STATE OF OHIO OP 1851. Art.I, § 9. 


It is legally incompetent for the supreme court of Ohio to with¬ 
draw, by habeas corpus, persons in custody of the district court of the 
United States, charged with violation of an act of congress, while the 
proceedings are pending, on the ground that the act of congress is 
unconstitutional: Ex parte Bushnell, 8 O. S. 599. 

“If a court, having jurisdiction over an offense punishable by a 
valid and constitutional law, pronounces sentence, and the commitment 
under that sentence is returned on habeas corpus, the form of the indict¬ 
ment, or the want of proper allegations therein, can not be inquired 
into; for this process can not be converted into a writ of error. In 
such case the court, having jurisdiction over the offense, must itself 
pronounce the law of the case, and, until reversed by some competent 
tribunal, is conclusive on all other courts, and puts an end to all collat¬ 
eral inquiry on habeas corpus. Hence it is that the statute itself, 
relating to this writ, excepts from those who are entitled to the benefit 
of it, all persons convicted of a crime or offense for which they stand 
committed, plainly and specifically expressed in the warrant of com¬ 
mitment”: Ex parte Bushnell, 9 O. S. 77. 

Where the court erroneously refuses to grant an order of discharge, 
and instead thereof remands the prisoner to jail, and continues the 
cause, the order remanding the prisoner to jail, so long as it remains 
unr.eversed, is a valid and legal authority to the sheriff for retaining 
the prisoner in custody, and the order can not be reviewed and re¬ 
versed, or the prisoner discharged, by a proceeding in habeas corpus 
before another tribunal: Ex parte McGehan, 22 O. S. 442. 

Habeas corpus lies to release a prisoner who has no means to pay 
his fine, unless the sentence making imprisonment the alternative 
reads, “till fine and costs are paid or secured to be paid”: Ex parte 
Mullanev, 8 O. N. P. 49, 10 O. D. (N.P.) 419. 

2 Debates, 231, 328, 806, 826, 857, 870. 


Section 9. All persons shall be bailable by sufbcient sure- 
ties, except for capital offenses where the proof is evident or punishilienc' " 
the presumption great. Excessive bail shall not be required; 
nor excessive fines imposed; nor cruel and unusual punishments 
inflicted. (See Const. 1802 , Art. VIII, §§ 12 , 13 .) 


See Const. 1802, Art. VHl, §§ 12 and 13. 

“Who is to decide whether the proof be evident, or the presump¬ 
tion great? Most undoubtedly the same authority which prescribes 
the amount of bail, and passes upon the sufficiency of the sureties; 
the judges of the court who exercise this same power in all analogous 
cases known to our laws. . . . The appeal must be addressed to the 

discretion of the court; a sound legal discretion it is true, but one 
that can only be moulded into action by the evidence brought to bear 
upon the indictment”: State v. Summons, 19 O. 139. 

After verdict of guilty, but before sentence, except in capital 

cases, where the proof is evident or the presumption great, the court 
may, in its discretion, take recognizance for the appearance of the 
prisoner to receive his sentence: Hampton v. State, 42 O. S. 401. 

There is no statute providing for a hearing with regard to bail 
after an indictment for murder in the first degree has been returned; 
but we have no doubt that the court, in a case where there are 

reasons, may hear testimony and, if satisfied, allow defendant to 
furnish bail: Martin v. State, 17 O. C. C. 406, 9 O. C. D. 621. 

If a prisoner in a workhouse is unruly and disorderly, the pun¬ 
ishment to be administered must be left, to a great extent, to the 
discretion of the superintendent, within reason: Rose v. Toledo, 1 

O. C. C. (N.S.) 321, 14 O. C. D. 540. 

This section limits the power of the court, so that the failure to 
provide a maximum penalty does not invalidate a statute making 
barbering on Sunday a misdemeanor: In re Stamfeal, 9 O, C. C. (N.S.) 
553, 19 O. C. D. 664. 

An act requiring all bonds to be executed by surety companies is 
invalid, in curtailing the constitutional right to offer individuals as 
bail in criminal cases: Haunts v. Lanman Co., 2 O. N. P. (N.S.) 405, 
15 O D. (N.P.) 64; State v. Robins, 71 O. S. 273. 

2 Debates, 231, 328, 806, 826, 857, 870. 


Section 10. Except in cases of impeachment, cases arising 
in the army and navy, or in the militia when in actual service in 
time of war or public clanger, and cases involving offenses for 
which the penalty provided is less than imprisonment in the peni- 


Of the trial of 
accused persons 
and their rights. 
Depositions by 
state and com¬ 
ment on failure 
of accused to tes¬ 
tify in criminal 
cases. 




136 


Art.I, §10. CONSTITUTION OF THE STATE OP OHIO OF 1851. 


tentiary, no person shall be held to answer for a capital, or 
otherwise infamous, crime, unless on presentment or indictment 
of a grand jury; and the number of persons necessary to consti¬ 
tute such grand jury and the number thereof necessary to concur 
in finding such indictment shall be determined by law. In any 
trial, in any court, the party accused shall be allowed to appear 
and defend in person and with counsel; to demand the nature 
and cause of the accusation against him, and to have a copy 
thereof; to meet the witness face to face, and to have compulsory 
process to procure the attendance of witnesses in his behalf, 
and a speedy public trial by an impartial jury of the county in 
which the ofifense is alleged to have been committed; but pro¬ 
vision may be made by law for the taking of the deposition by 
the accused or by the state, to be used for or against the accused, 
of any witness whose attendance can not be had at the trial, 
always securing to the accused means and the opportunity to’ be 
present in person and with counsel at the taking of such deposi¬ 
tion, and to exanwne the witness face to face as fully and in the 
same manner as if in court. No person shall be compelled, in 
any criminal case, to be a witness against himself; but his 
failure to testify may be considered by the court and jury and 
may be made the subject of comment by counsel. No person 
shall be twice put in jeopardy for the same oflense. (As 
amended September 3 , 1912 .) 

Vote: “Yes,” 291,717; “No,” 227,547. 

Orig-inal § 10 read as follows: “Sec. 10. [Of the trial of accused per¬ 
sons and their rights.] Except in cases of impeachment, and cases 
arising in the army and navy, or in the militia when in actual service 
in time of war or public danger, and in cases of petit larceny and other 
inferior offenses, no person shall be held to answer for a capital, or 
otherwise infamous crime, unless on presentment or indictment of a 
grand jury. In any trial, in any court, the party accused shall be 
allowed to appear and defend in person and with counsel; to demand 
the nature and cause of the accusation against him, and to have a copy 
thereof; to meet the witnesses face to face, and to have compulsory 
process to procure the attendance of witnesses in his behalf, and a 
speedy public trial by an impartial jury of the county or district, in 
which the offense is alleged to have been committed; nor shall any 
person be compelled, in any criminal case, to be a witness against 
himself, or be twice put in jeopardy for the same offense. (See Const. 
1802, Art. VIII, § 11.)” 


I. Applied, cited, construed, re¬ 
ferred to, etc. 

II. Inferior ofTense.s. 

III. Indictment by grnnd jury. 

IV. Right of accused to appeal 

and defend. 

V. Right of accused to know 
nature of accusation. 

VI. Right of accu.sed to meet 
witnesses face to face. 


VII. Compulsory attendance of 
witnesses. 

VIII. Pubiic trial. 

IX. Trial by impartial jury. 

A. Nature of the right. 

B. Cases in which right to 

jury does not exist. 

X. Trial in county or district. 

XI. Compelling one to be a wit¬ 
ness again.st himself. 

XII. Twice in jeopardy. 


I. APPLIED, CITED, CONSTRUED, REFERRED TO, ETC. 

Hartnett v. State, 42 O. S. 568; State v. Knight, 54 O. S. 330; Truman 
V. Walton, 59 O. S. 517; State v. Carl, 71 O. S. 259; Gage v. State, 
1 O. C. C. (N.S.) 221, 14 O. C. D. 724 [reversed. State v. Gage, 72 O. 
S. 210]; Lindsey v. State, 4 O. C. C. (N.S.) 409, 14 O. C. D. 1 [affirmed, 
Idndsey v. State, 69 O. S. 215]; August v. Finnerty, 10 O. C. C. (N.S.) 
433, 20 O. C. D. 330; W^ellsville v. O’Connor, 1 O. C. C. (N.S.) 253, 14 
O. C. D. 689; State v. Stichtenoth, 8 O. N. P. (N.S.) 297, 19 O. D. (N.P.) 
623; In re Strauss, 197 U. S. 324; State v. Cox, 21 O. D. (N.P.) 535. 


II. INFERIOR OFFENSES. 

There are, however, many offenses, made so by statute, which are 
but quasi criminal, and where the legislature may direct the mode 
of redress, untrameled by this constitutional provision. Such is Sabbath 
breaking, selling spirituous liquors on Sunday, and the disturbance 




137 


CONSTITUTION OF THE STATE OF OHIO OF 1851. 


of religious meetings, with many others (Swan’s Stat. 255, 256.) Long 
acquiescence in these enactments goes far to show the construction 
which has been placed by all on the constitution, and that there may 
be many offenses, though decidedly immoral and mischievous in their 
tendencies, that are not crimes, but at most only quasi criminal. 
Of such, jurisdiction may be given to a justice of the peace, or the 
mayor of an incorporated town: Markle v. Town Council of Akron, 
14 O. 586. 

By the tenth section of the first article of the constitution, a pre¬ 
sentment or indictment of a grand jury is dispensed with, “in cases of 
petit larceny and other inferior offenses.” How such offenses should 
thereafter be prosecuted, depended entirely upon legislative discretion. 
But, it is said, this dispensation only extends to offenses inferior in 
grade to petit larceny. We can not adopt such a construction. Indeed, 
to do so, would be to leave the whole matter to mere conjecture. It 
is very evident that petit larceny is simply named as one of a class 
of offenses: and equally so, that the class was intended to embrace all 
offenses for which a punishment less than imprisonment in the peni¬ 
tentiary is provided. This was a classification so long tased in our 
laws, and so well understood, as to leave no doubt that it was the one 
intended to be adopted by the convention: Dillingham v. State, 5 O. S, 
280. 

The jurisdiction conferred on police courts by § 167 of the munici¬ 
pal code (66 V. 176), (see G. C. § 4527, et seq.), extended to petit larceny 
and all such other inferior offenses as are not required by Art. I, § 10, 
of the constitution, to be prosecuted by indictment: Cole v. State, 29 
O. S. 226 [cited in Davis v. State, 32 O. S. 24]. 

“Under the constitution of 1851 (Art. I, § 10), in cases where the 
punishment is less than imprisonment in the penitentiary, an indict¬ 
ment is unnecessary, unless provided for by statute. Dillingham v. 
The State, 5 Ohio St., 280 282. But in so ordaining, the framers of 

the constitution did not intend to substitute, in such cases, the pro¬ 
ceeding by criminal information as it exists at common law. Reasons 

for this conclusion are stated in Gates v. State, 3 O. S. 293, but 

there are others equally cogent”: Eichenlaub v. State, 36 O. S. 140. 

General Code § 3664 authorizing cities and villages to provide for 
the punishment of known thieves and pick-pockets does not contravene 
this section: Morgan v. Nolte, 37 O. S. 23. 

Cases for the violation of village ordinances, sent to the court of 
common pleas in pursuance of G. C. § 4539, should be tried in that 
court upon the affidavit filed before the mayor. Indictment of the ac¬ 
cused is neither necessary nor proper: Finnical v. Cadiz, 61 O. S. 494; 
.see, also, Kubach v. State, 1 O. N. P. (N.S.) 405, 14 O. D. (N.P.) 726. 

III. INDICTMENT BY GRAND JURY. 

“An individual accused of a crime, can not be compelled to answer 
the charge until the same has been made through the intervention of a 
grand jury, in the form of a presentment, or indictment. Should the 
legislature pass an act to compel an individual to answer, without this 
prerequisite, such act would be in violation of the constitution, and 
void. No such power is, as I believe, claimed by any of the numerous 
advocates for legislative supremacy. But this clause in the constitu¬ 
tion has nothing to do with the particular forms of indictments. These 
forms will vary according to the nature of the criminal acts prohibited. 
The legislature has the power to declare what acts are criminal, and 
they have the same power to prescribe the forms of indictments for 
the commission of such criminal acts. They can not dispense with the 
indictment itself, but they can dispense with some of its technical 
formalities”: Lougee v. State, 11 O. 68; see, to the same effect. Wolf 
V. State, 19 O. S. 248; Turpin v. State, 19 O. S. 540. 

Where, on an indictment for grand larceny presented against H. L. 
a person was arraigned, and pleaded in abatement that his name is not 
H. L. but W. H. L. and the plea was found to be true, and the name 
thus disclosed was entered on the minutes of the court, and the trial 
and further proceedings were had in pursuance of G. C. § 13626, it 
was held that this statute is not in contravention of this section of the 
constitution: Lasure v. State, 19 O. S. 43. 

A regular grand jury under our statutes consists of fifteen jurors: 
State V. Laning, 7 O. N. P. (N.S.) 281, 18 O. D. (N.P.) 672. 

IV. RIGHT OP ACCUSED TO APPEAR AND DEPEND. 

“The court has no discretionary power over the right itself for it 
can not be denied. And hence it has no right to prevent the accused 
from being heard by counsel, even if the evidence against him be clear, 
unimpeached and conclusive in the opinion of the court. But the 
exercise of the right is subject to judicial control, to the extent that 
is necessary to prevent the abuse of it”; Dille v. State, 34 O. S. 617. 


Art.I, § 10. 




138 


Art.I, §10. CONSTITUTION OP THE STATE OF OHIO OP 1851. 


If the court gives a reasonable time for the presentation of the case 
it may fix the time which it will allow to the accused for arguing his 
case to the jury: Weaver v. State, 24 O. S. 584. 

It is no ground for the reversal of a judgment that a motion for a 
new trial was made, argued and overruled in the absence of the 
prisoner, where no objection was made till after sentence: Griffin v 
State, 34 O. S. 299. 

Where an order is made by the court, on motion of the prosecuting 
attorney, under G. C. § 13658 that the jury view the premises where the 
alleged crime was committed, in charge of the sheriff and a person ap¬ 
pointed by the court to point out the premises, it is error to permit such 
view in the absence of the accused and against his objection: Hotelling 
V. State, 3 O. C. C. 630, 2 O. C. D. 366. 

V. RIGHT OF ACCUSED TO KNOW NATURE OF ACCUSATION. 

The indictment or information must aver all the material facts 
which it is necessary to prove to produce a conviction, and with such 
reasonable certainty as to advise the accused what he may expect to 
meet on the trial: Dillingham v. State, 5 O. S. 280; Davis v. State, 7 O. 
(pt. 1) 205; Lougee v. State, 11 O. 68; Lamberton v. State, 11 O. 282; Fouts 
V. State, 8 O. S. 98; State v. Owen, 3 O. N. P. 181, 4 O. D. (N.P.) 163. 

An indictment is the written accusation originating from the ordeal 
of the grand ing^uest of the county, before any person can be put upon 
his trial for a hi^h crime. As a protection to innocence and a safeguard 
against the oppressive and arbitrary exercise of power, it is provided 
in the bill of rights, among the fundamental principles of our govern¬ 
ment, that “no person shall be held to answer for a capital or otherwise 
infamous crime, unless on presentment or indictment of a grand jury,” 
and also, further, that, “in any trial, in any court, the party aiccused 
shall be aPowed to demand the nature and cause of the accusation 
against him, and to have a copy thereof.” The indictment, in the con¬ 
templation of the constitution, is that written statement of the nature 
and cause of the accusation, with all the certainty and substantial 
requirements heretofore sanctioned and declared essential by the settled 
law of the country. Why these provisions in the fundamental law of the 
state? Why the ceremony and expense of a grand jury to find and re¬ 
turn an indictment setting out the “nature and cause of the accusa¬ 
tion?” And why guarantee to the accused the right to demand and 
have a copy of the indictment, if the written averments, descriptive of 
the crime, are not required to be made with certainty and truth, charg¬ 
ing the overt act with all the substantial and distinguishing ingredients 
which the statute creating the offense has made essential to constitute 
the crime? If any one or more of the substantial ingredients or dis¬ 
tinguishing constituents of the crime may be omitted, the written accu¬ 
sation required would become a mere snare by which to mislead and 
entrap the accused on his trial. Where either purpose, intent or knowl¬ 
edge is, by the statute, made a distinguishing characteristic of a crime, 
it is as essential that such purpose, intent or knowledge should be 
averred in the description of the act charged as the crime as any other 
material and distinguishing ingredient. If, when a man’s life is in 
jeopardy by his being put upon his trial for murder in the first degree, 
the written accusation against him be sufficient, when the overt act 
described in it as the crime amounts to nothing more than manslaughter 
under the specific provisions of the statute creating and defining the 
offense, the constitutional guaranty of a written charge, setting out the 
nature and cause of the accusation, is worse han a mere vain thing, 
and the ceremonial of a grand jury, to charge the accused on present¬ 
ment and indictment, worse than a mockery and mere farce. It is a 
deception and a snare, instead of that humane protection against the 
oppressive exercise of arbitrary power which has been the boast of our 
country; Fouts v. State, 8 O. S. 98. 

All specific acts, necessary elements of the crime charged, and in¬ 
dispensable in order to secure a conviction, must be specifically set 
forth in the indictment: State v. Dang, 5 O. N. P. (N.S.) 369, 18 
O. D. (N.P.) 53. 

The indictment must state every circumstance of knowledge, inten¬ 
tion or action that constitute the criminal design: Anderson v. State, 
7 O. (pt. 2) 250. 

An indictment of a statutory offense must set forth the charge in 
the words.of the statute describing the offense: Hess v. State, 5 O. 1. 

It is sufficient in an indictment for manslaughter to charge the 
crime in accordance with G. C. § 13583, which is not repugnant to the 
constitution: Wolf v. State, 19 O. S. 248 [followed in Williams v. State, 
35 O. S. 175]. 

The provision in G. C. § 13590 which declares that it shall be suffi¬ 
cient in any indictment, where it is necessary to allege an intent to de¬ 
fraud, without alleging an intent to defraud any particular person, is 
not in conflict with this provision; Turpin v. State, 19 O. S. 540. 



139 


CONSTITUTION OF THE STATE OF OHIO OF 1851. 


Felonies must be prosecuted by indictment; and while the legisla¬ 
ture has the power to prescribe forms and dispense with many formal 
allegations in indictments, there is a limit to such power; and it is clear 
that there is no authority in the legislature to enact, or in the court to 
determine, that that shall be a sufficient indictment which fails to 
inform the accused of the offense with which he is charged. An indict¬ 
ment for illegal voting held to be fatally defective in failing to desig¬ 
nate the election at which the defendant voted: Lane v. State, 39 O. S. 
313. 

An indictment for stealing bank bills must aver a “scienter” or it 
is defective: Gatewood v. State, 4 O. 387. 

An affidavit charging the having for sale a drug “which differed 
from the standard of strength laid down in said U. S. Pharmacopoeia,” 
without showing wherein it differed is indefinite and violates this sec¬ 
tion of the bill of rights: Groenland v. State, 4 O. N. P. 122, 6 O. D. 
(N.P.) 313 [affirmed, by the supreme court, without report. State v. 
Groenland, 39 Bull. 2]. 

An indictment, in general terms, for embezzlement is not sufficient 
where the state intends to show numerous acts of such occurring at 
different times. A bill of particulars may be demanded: State v. 
Langan, 1 O. D. (N.P.) 261. 

An affidavit so drawn that the act set forth may or may not be an 
infraction, so that it is necessary to wait until the prosecution has 
introduced its evidence before the defendant can know whether or not 
he must make any defense, is fatally defective: Arata v. State, 12 O. D. 
(N.P.) 730. 

Where the accused goes to trial under the general issue raised 
by his plea of not guilty,, he is deemed to waive any insufficiency 
in the indictment: State v. Pohl, 13 O. D. (N.P.) 386. 

A charge that accused falsely represented he was buying goods 
exclusively from a certain firm is insufficient under this section. 
The indictment should further state names of other parties with whom 
he was dealing, the nature of transactions and their date and amount: 
State V. Mina, 15 O. D. (N.P.) 487, 3 O. L. Ti. 31. 

The act of April 16, 1906, establishing juvenile courts and establish¬ 
ing procedure therein, does not contravene any of the provisions of 
the state constitution: Travis v. State, 12 O. C. C. (N.S.) 374, 21 O. 
C. D. 492. 


VI. RIGHT OP ACCUSED TO MEET WITNESSES FACE TO F.VCE. 

This like numerous other provisions in the bill of rights, is a con¬ 
stitutional guaranty of one of the great fundamental principles well 
established, and long recognized at common law, both in England and 
in this country. The scope and operation of it are clearly defined and 
w'ell understood, in the common law recognition of it; and the assertion 
of it in the fundamental law of the state, was designed neither to 
enlar.ere nor curtail it in its operation, but to give it permanency, and 
secure it against the power of change or innovation. 

The object of this provision, manifestly, is to exclude testimony *by 
depositions, by requiring it to be given orally, in the presence of the ac¬ 
cused, on the trial. The admission of testimony by depositions against 
the accused in a criminal cause, would often afford the prosecutor great 
advantages over him, as well as furnish, at times, opportunities for 
abuses beyond the reach of detection by the defendant. Deprived of 
this right, the accused would often be without the opportunity of 
cross-examination, without the means of seeing, hearing or knowing 
the persons who testify against him, and without the advantage of 
an oral examination of the witnesses before the jury which is to 
decide upon his case. But important as this right is, as established 
at common law, and secured by the constitution, it has application to the 
matter of the personal presence of the witness on the trial, and not to 
the subject-matter or competency of the testimony to be given. The 
requirement that the accused shall be confronted, on this trial, by 
the witnesses against him, has sole reference to the personal presence 
of the witnesses, and it in no wise affects the question of the compe¬ 
tency of the testimony to which he may depose. When the accused has 
been allowed to confront, or meet face to face, all the witnesses called 
to testify against him on the trial, the constitutional requirement has 
been complied with. This was done on the trial of the case before us, 
in the district court, Mary Clinch was not a witness on that trial. Being 
dead, it was an impossibility that she could be a witness on that trial. 
Logan, however, who was a witness, and did testify, did meet the 
accused face to face on the trial. The provision in the bill of rights 
was complied with: Summons v. State, 5 O. S. 325. 

Testimony proving the statements made by a deceased witness on 
oath at a former trial between the same parties, being one of the estab¬ 
lished exceptions to the rule that hearsay is incompetent as evidence, 
the admission of a witness to give evidence of this kind in a criminal 


Art.I, § 10. 



140 


Artl, § 10. CONSTITUTION OP THE STATE OP OHIO OP 1851. 


case, does not contravene this provision of the constitution: Summons 
V. State, 5 O. S. 325. 

Evidence of dying declarations, is not forbidden by this section, 
the objection to such evidence going to the competency of the evidence, 
and not to the competency of the witness: Summons v. State, 5 O. S. 
325; see, also, Robbins v. State, 8 O. S. 131; Montgomery v. State, 11 O. 
424; Wagers v. Dickey, 17 O. 439. 

This section applies to oral testimony of witnesses; and not to the 
introduction of public records or other instruments of writing that may 
become competent evidence in the trial of a criminal case: Folliard v. 
State, 14 O. C. C. (N.S.) 205. 

VII. COMPULSORY ATTEND.YNCE OF WITNESSES. 

General Code § 13662, limiting character witnesses to ten, in certain 
cases, does not violate this section: State v. Stout, 49 O. S. 270. 

VIII. PUBLIC TRIAL. 

An order made by the court of common pleas, during the trial of 
an indictment for a felon 5 ’, to the effect that in view of the testimony 
expected to be given by witnesses next to be called, the court would 
continue the trial, during the taking of the testimony of witnesses 
likely to give immoral or obscene testimony, in the small court room, 
that the sheriff should admit no one to said room except the jury, 
defendant’s counsel and members of the bar and newspaper men, and 
one other person, a witness for defendant, exceeds the power of the 
court in the premises, and its enforcement is a denial to defendant of 
his constitutional right to a public trial: State v. Hensley, 75 O. S. 
255. 


IX. TRIAL BY IMPARTIAL JURY. 

A. Nature of right. By this section the right of trial by jury is 
declared to belong to every person accused of any crime or offense, in 
any court of the state: Work v. State, 2 O. S. 297, 

An ordinance of an incorporated village provided that persons keep¬ 
ing billiard tables, to be used by others, should be imprisoned for a 
term not exceeding thirty days. It was held that, although such an 
ordinance may have been authorized by § 35, of the municipal corpora¬ 
tion act, as amended April 5, 1856 (50 v. 223), yet no corresponding 
change in the powers and jurisdiction of mayors of incorporated villages, 
so as to furnish the means of a trial by jury, having been made, a trial 
and sentence to imprisonment, by the mayor, of a person charged with 
a violation of the ordinance, are illegal: Thomas v. Ashland, 12 O S 
124. 

In view of the provisions of Art. 1, § 2 and Art. 11, § 10, it would 
be a grave question whether the legislature could create a new offense 
to be punished by imprisonment, and provide that the trial for such 
offense should be before a single judge, without a jury. A power 
which the legislature itself could not exercise, verj- certainly can not 
be delegated to a municipal corporation: Thomas v. Ashland, 12 O S 
124. 

“The right of the accused to an impartial jury can not be abridged. 
To secure this right it is necessary that the body of triers should be 
composed of men indifferent between the parties, and otherwise capable 
of discharging their duty as jurors. Whether, in the practical admin¬ 
istration of justice, the right is infringed, is necessarily a judicial 
question; and whether, in a particular case, a proposed juror has the 
state of mind which will render him impartial, is a question of fact, 
which it is the duty of the court trying the case to decide. This duty 
is enjoined by the constitution, and, it is true, can not be impaired, or 
the right abridged, by legislative action. The previous demeanor of a 
juror, the information he may have received, or the opinions he may 
have entertained or expressed, are only evidence of the state of his 
mind, and are material only as they may tend to show a free judgment 
of the case, the existence of prejudice against either of the parties, or 
his indifference between them’’: Cooper v. State, 16 O. S. 328; see also 
Martin v. State, 16 O. 364. 

A statute which permits a juror to serve, although he has formed 
or expressed an opinion as to the guarantee of the accused, if he says 
that he can render an impartial verdict notwithstanding such opinion, 
is not a violation of this section: Cooper v. State, 16 O. S. 328- see’ 
also. Palmer v. State, 42 O. S. 596. 

In a summary proceeding before the probate court under the act 
of February 26, 1843 (51 O. L. 354), on complaint of an administrator 
against a party suspected of embezzling, concealing, or conveying away 
the property or effects of the estate, the court has no constitutional 
power to render judgment against the party so charged, except for such 
property and effects as he, on his examination, admits himself guilty of 



141 


CONSTITUTION OF THE STATE OP OHIO OP 1851. 


having embezzled, concealed or carried away; and to the extent that the 
statute professes to authorize a judgment in cases where there is a 
controversy between the parties, it is unconstitutional: Howell v. Fry, 
19 O. S. 556. 

Where a person called as a juror in a criminal case formed an opin¬ 
ion by reading what purported to be the testimony of witnesses he is 
di.squalified as a" juror, but if such opinion was founded upon hearsay, 
newspaper comment, etc., and the court is satisfied that he could render 
an impartial verdict he is competent: Frazier v. State, 23 O. S. 551 
[followed in McHugh v. State, 42 O. S. 154]. 

A juror being examined on his voir dire, stated that from what he 
had talked and read about trials of codefendants he had formed an 
opinion against the defendant which it would require testimony to 
remove, although he had nothing personally against him, and that the 
fact that the defendant had been indicted would have weight with him 
unless defendant proved himself not guilty, and as the case stands 
would require the defendant to prove his innocence; but it did not 
appear that he had talked with or read the testimony of any witness, or 
had talked with anyone claiming to have knowledge of the facts, and it 
was shown, on further examination, that his opinion rested principally 
on the suspicion that the defendant was one of the gang that committed 
the crime, but that he did not assume to know that to be a fact, and 
that if the court should instruct that he need not consider the fact that 
the defendant had been indicted he could lay aside that fact and not 
consider it an evidence against him, and finally that, notwithstanding 
any previous bias, opinion or prejudice, he could render a fair and 
impartial verdict according to the law, and the evidence, and that 
court, so believing, overruled the defendant’s challenge for cause. It 
was held that the facts do not show an abuse of discretion in so over¬ 
ruling the challenge: Lindsey v. State, 69 O. S. 215; McHugh v. State, 
42 O. S. 154, and Goins v. State, 46 O. S. 457, approved and followed. 

This section was intended to guarantee the right of trial by jury 
as it existed under the constitution of 1802: Ames v. State, 11 O. N. P. 
(N.S.) 385. 

As to trial by jury, see, also. Art. I, § 5, and notes; Art. I, § 19; 
Art. XHI, § 5. 

B. Case.s in 'which right to jury does not exist. Section 8, of the 
act of April 16, 1857 (54 v. 163), “to authorize the establishment of 
houses 'Of refuge,” and the statutes subsequently enacted enlarging 
the operation of that act so as to authorize commitments to “the state 
reform farm” (55 v. 27) (see G. C. § 2084), are not repugnant either 
to this section or to § 5 of this article, although they make no provi¬ 
sion for a trial by jury: Prescott v. State, 19 O. S. 184. 

A statute, which authorizes a penalty by fine only, upon a summary 
conviction under a police regulation or of an immoral practice prohib¬ 
ited by law, although imprisonment, as a means of enforcing the pay¬ 
ment of the fine is authorized, is not in conflict with either § 5 or 
§10, of Art. I, of the constitution, on the ground that no provision is 
made for a trial by jury in such cases: Inwood v. State, 42 O. S. 186. 

The provisions of G. C. § 13692, which provide that “if the offense 
charged is murder, and the accused be convicted by confession in open 
court, the court shall examine the witnesses, and determine the degree 
of the crime, and pronounce sentence accordingly,” are constitutional 
and valid: Craig v. State, 49 O. S. 415. 

In a proceeding for contempt in refusing to answer as a witness, 
the witness is not entitled to a trial by jury: Annon v. Johnson, 3 O. 
C. C. 263, 2 O. C. D. 149. 

The act to secure the compulsory education of children and in 
extreme cases to commit without trial by jury is valid: Quigley v. 
State, 5 O. C. C. 638. 

In prosecutions where the penalty is a fine only, the accused is 
not entitled under this section to a trial by jury: Ward v. State, 5 O. 
N. P. 81, 5 O. D. (N.P.) 230. 

Imprisonment imposed to enforce the payment of a fine and costs 
under a police regulation is not a part of the penalty within the pur¬ 
view of the guaranty of jury trial: Schlagel v. State, 3 O. N. P. (N.S.) 
429, 16 O. D. (N.P.) 295. 

An accused may be deprived of a trial by jury when the penalty 
imposed by the statute for the crime is only a fine: Editorial, 37 Bull. 
258. 

The constitutional right of trial by jury is not infringed when the 
option is given to the accused to have the issue tried by the court or 
the jury, and he submits the cause to the court: Dillingham v. State, 
5 O. S. 280. 

General Code § 13451, which authorizes the probate court to try 
the issue upon a plea other than that of guilty by the defendant did 
not demand a trial by jury is not rendered invalid by this provision 
of the constitution: Dailey v. State, 4 O. S. 57. 


Art.I, § 10. 



142 


Art.I, § 10. CONSTITUTION OF THE STATE OP OHIO OF 1851. 


The issue made by the plea of not guilty to an action of ejectment, 
can not be, tried by the court, without the waiver by the parties of a 
jury trial: Slocum v. Swan, 4 O. S. 162. 

Upon the trial of an issue raised by a plea of not guilty, in the 
higher grades of crime, it is not in the power of the accused to waive a 
trial by jury, and, by consent, submit to have the facts found by the 
court, so as to authorize a legal judgment and sentence upon such 
finding: Williams v. State, 12 O. S. 622. 

In a prosecution under G. C. §§ 13423 and 13432, et seq., upon a plea 
of not guilty, before the justice can acquire jurisdiction to hear the 
complaint and enter final judgment in the case without the intervention 
of a jury, the accused must waive his right to a jury trial. 

Such waiver must clearly and affirmatively appear upon the record, 
and it can not be assumed or implied by a reviewing court from the 
silence of the accused, or his mere failure to demand a jury: Simmons 
V. State, 75 O. S. 346; Dailey v. State, 4 O. S. 57, and Billigheimer v. 
State, 32 O. S. 435, distinguished. 

The defendant is not entitled as a matter of right to have the cause 
tried by the court instead of a jury: Ickes v. State, 16 O. C. C. 31, 8 O. 
C. D. 442 [affirmed, Ickes v. State, 63 O. S. 549, 59 N. E. Rep. 233]. 

A w^aiver of trial by jury in an assault and battery case should, as 
a matter of safety, be noted upon the record. 

But where the bill of exceptions is silent as to a demand for a jury, 
or refusal to waive the right of trial by jury, in an assault and battery 
case tried in a police court, a reviewing court, in view of the fact 
that a police court is a court of record and has jurisdiction to try 
such a case, will assume that a jury was waived: Evans v. State, 
3 O. C. C. (N.S.) 23, 13 O. C. D. 103 [affirmed, without report, Evans 
V. State, 68 O. S. 700]. 


X. TRIAL IIV COl XTY OR DISTRICT. 

On the charge of uttering and publishing a forged instrument 
(G. C. § 13083), the place where the instrument was uttered and 
published, and not the place where the forgery was committed, deter¬ 
mines the jurisdiction: Lindsey v. State, 38 O. S. 507. 

If the forged instrument has been uttered and published in this 
state, with intent to defraud by means of an innocent agent here, it 
is no defense to an indictment, in the proper county in this state, to 
show that the accused never -was wdthin the state, or that he owes 
allegiance to another state or government: Lindsey v. State, 38 O. S. 507. 

The guaranty contained in § 10, of the bill of rights, that an 
accused person shall have “a trial by an impartial jury of the county or 
district in which the offense is alleged to have been committed,” does 
not require that the trial shall take place within the judicial district 
where the indictment is found; and under G. C. § 13636, the court in 
which an indictment is returned may, on motion of the accused, if an 
impartial jury can not be had there, order that he be tried in any 
adjoining county: State, ex rel., v. McCarty, 52 O. S. 363. 

General Code § 12659, w'hich provides that certain offenses, such 
as nuisances, shall be held to be committed in any county w^hose 
inhabitants are aggrieved thereby is not rendered invalid by this pro¬ 
vision of the constitution: American Strawboard Co. v. State, 70 O. S. 
140 [affirming State v. Strawboard Co., 13 O. D. (N.P.) 373]. 

Under authority of G. C. § 13636, regulating the change of venue in 
criminal cases, the court having jurisdiction of the cause in the county 
of the offense, if it be made to appear to the court that a fair and im¬ 
partial trial can not be had therein, may, upon application of the pros¬ 
ecuting attorney on behalf of the state, direct that the cause be tried 
in an adjoining county. Said section thus construed, is not repugnant 
to § 10, of Art. I, of the constitution of Ohio: State v. Durfinger, 73 
O. S. 154. 

In the case of State v. Arrison, 10 Dec. Rep. 379, 20 Bull. 474, which 
was an indictment for murder, referred to in Fonts v. State, 8 O. S. 98, 
an order was made by Parker, J., of the Hamilton county common pleas, 
changing the venue to the county of Butler; but the presiding judge 
(Clark, J.), after full argument, held that this could not be done, in 
view of this constitutional provision. 

In a prosecution for the violation of local option statutes it is not 
necessary that the jury be selected from the municipal corporation in 
which such offense was committed: Lloyd v. Dollison, 3 O. C. C. (N.S.) 
328, 13 O. C. D. 571 [affirmed, without report. State v. Dollison, 68 O. S. 
688, which was affirmed in State, ex rel., v. Dollison, 194 U S 445 14 
O. F. D. 380]. 

In all cases where crime is charged, the jury district, to meet con¬ 
stitutional requirements, should be coextensive with the trial district; 
and it follows that one charged with an offense committed beyond 



143 

CONSTITUTION OF THE STATE OP OHIO OP 1851. 


municipal limits, but within police court jurisdiction as fixed by 97 
Vv. ^ legally tried by a jury drawn from residents of 

the n^nicipality only: Fendrick v. State, 9 O. C. C, (N.S.) 49. 18 
O. C. D 724, 4 O. L. R. 350. 

Section 2, of an act of the general assembly, entitled, “An act to 
compel parents to obtain their children,” passed and approved April 28, 
1908 (99 O. L. 228), arbitrarily enacting that “the offense shall be held 
to have been committed in any county of this state in which said child 
* * * may be at the time such complaint is made,” is repugnant to 

Art. I, § 10, of the constitution and void: In re Wyant, 8 O. N. P. (N.S.) 
207 . 

An act extending jurisdiction of police courts within the limits of 
the county, and in cases where imprisonment is part of penalty 
excluding citizens from that part of county from jury service contra¬ 
venes this section: State v. Voris, 8 O. N. P. 16, 10 O. D. (N.P.) 451. 

General Code § 13636, authorizing change of venue when impartial 
trial can not be had does not contravene this section: State v. Geiger, 
3 O. L. R. 626. 

General Code § 6308, which provides that actions for injury to 
person or property caused by the negligence of the owner of any 
motor vehicle may be brought by the party in the county where the 
injured party resides and that summons may issue to the sheriff of 
any county in the state wherein the defendant resides, is valid and 
constitutional: Allen v. Smith, 84 O. S. 283. 


XI. COMPELI.ING ONE TO BE A AVITNESS AGAINST HIMSELF. 

The act of April 20, 1874 (71 v. 146), which gave penalty of $150.00 
to be recovered by civil action, to the party aggrieved by a railroad 
corporation overcharging for the transportation of passengers or prop¬ 
erty, and which allows the allegations in a petition, not denied by 
answer, to be taken as true, did not violate the principle guaranteed 
by this section, that no person in any criminal case shall be compelled 
to be a w'itness against himself: Railroad v. Cook, 37 O. S. 265; 
G. C. §§ 9002 and 9003. 

It is not a violation of the constitutional provision, that no person 
shall be compelled in a criminal case to be a witness against himself, 
for the trial judge to require him, over the objection of his counsel, to 
stand up for better identification by the prosecuting witness: Coles v. 
State, 3 O. C. C. (N.S.) 420, 13 O. C. D. 313. 

The provision “no person shall be compelled in any criminal case 
to be a witness against himself” is a privilege and may be waived: 
Haberty v. State, 8 O. C. C. 262, 4 O. C. D. 462. 

It is not error for the court, sui sponte, to charge the jury that: 
“The fact that the defendant has not gone upon the witness stand and 
testified, does not excuse the state from the full measure of proof to 
which I have called your attention, for it is the privilege of the 
defendant either to testify in his own behalf or to decline to do so, 
resting his denial of the offense solely upon his plea of ‘not guilty’”: 
Tate V. State, 9 O. C. C. (N.S.) 287, 19 O. C. D. 410 [affirmed, Tate v. 
State, 76 O. S. 537]. 

When one is subpoenaed to appear as a witness before a tribunal 
created by law and that one is under investigation as to a criminal act 
alleged to have been committed by him. nothing said bv him then and 
there can be the predicate of any indictment against him, unless he 
volunteer to become such a witness with a full knowledge of the pos¬ 
sible or probable results to him. The intent to thus become a volunteer 
must be clear, definite and certain. Article I, § 10, of the constitution 
does not mean he can not be asked self-incriminating questions, nor 
does it mean he must claim a privilege against self-incrimination. 
Such a witness under such circumstances is exempt from becoming a 
witness at all: State v. Cox, 11 O. N. P. (N.S.) 305. 

A law compelling witnesses to testify at an investigation of 
elections, and which provides that such testimony shall not be- used 
in criminal prosecution, does not contravene this section and witnesses 
may be committed for contempt in refusing to testify: Steuer v. 
McConnell, 8 O. N. P. 205, 10 O. D. (N.P.) 573. 

This section was invoked as a reason for refusing to admit in evi¬ 
dence involuntary confessions in criminal cases: State v. Strong, 12 O. 
D. (N.P.) 698. 

In an action by a wife for recovery of money lost by her husband 
in betting on horse races in a pool room of defendant, the requirement 
that defendant answer pertinent interrogations attached to petition 
does not contravene this section: Kleimeyer v. Payne, 3 O. L. R. 386. 


Art.1, § 10. 





144 


Art.I, §10. CONSTITUTION OF TUB STATE OF OHIO OP 1851. 


XII. TWICK IN JEOPARDY. 

“The constitutional provision extends the common law maxim, 
which was limited to felonies, to all grades of offenses; and it is but 
the application to the administration of criminal justice, of a more 
general maxim of jurisprudence, that no one shall be twice vexed for 
one and the same cause. On this maxim rests the whole doctrine of 
res judicata. The object of incorporating it into the fundamental law 
was to render it, as respects criminal causes, inviolable by any depart¬ 
ment of the government”: State v. Behimer, 20 O. S. 572. 

“It is the right of the state, and one of the most solemn and respon¬ 
sible of its duties, to punish crime; and it is the absolute right of any 
one accused of a crime, to demand ‘a speedy public trial by an impartial 
jury,’ and a verdict declaring his guilt or innocence, according to the 
due course of law. The one is indispensably necessary to the safety of 
the community and the preservation of peace and order, and the other 
for the protection of the innocent, and to prevent the oppression, which 
might otherwise be practiced, by those having charge of state prosecu¬ 
tions. The problem has always been to preserve intact both of these 
important rights; and the object has been completely accomplished, by 
holding the accused liable to answer until, in the regular course of 
judicial proceedings, the tribunal charged with the issue, without 
molestation or interference, has had the fullest and amplest opportu¬ 
nity to pass upon the question of his guilt; and by making every 
interference, on the part of the government, by which a verdict is pre¬ 
vented, while a reasonable hope remains that one may be rendered an 
absolute bar to his further prosecution. If a verdict can not be obtained 
upon one trial, another may be lawfully had; and the unavoidable delay 
which ensues, is the fault of no one. For the better protection of the 
accused, the law requires unanimity in the jury, before a verdict can be 
rendered; but to allow, on the one hand, the ignorance, perversity or 
even honest mistake, of a single juror to paralyze the administration 
of justice, and turn loose upon the community the most dangerous 
offenders, or, on the other, to allow the government to trifle with the 
constitutional safeguards of the accused, would equally subvert the 
foundation principles upon which the criminal code is administered”: 
Dobbins v. State, 14 O. S. 493. 

When the defendant, in a criminal prosecution, is discharged under 
G. C. §§ 13685 and 13686, on the ground that he has not been brought to 
trial within the time therein limited, the order of discharge is to be 
regarded, not as a mere temporary release of the prisoner from conflne- 
ment, but as a flnal judgment in the cause, and a bar to all subsequent 
prosecutions for the same crime or offense: Ex parte McGehan, 22 O. S. 
442. 

A jury charged with the trial of a capital case, after long delibera¬ 
tion unable to agree upon a verdict, may be discharged by the court, 
and the accused held to a further trial, without any infringement of 
this provision. The power to do so, against his consent, only exists in 
cases of absolute necessity, and when the jury has considered the cause 
for such a length of time as to leave no reasonable expectation that 
they will be able to agree upon a verdict: Dobbins v. State, 14 O. S. 
493; Poage v. State, 3 O. S. 229; Hurley v. State, 6 O. 399. 

If a court, in a criminal case, after a jury has retired to consult 
on their verdict, discharges them without the assent of the prisoner, 
and without the existence of a cause for which they might lawfully be 
discharged, the prisoner can not be again tried for the same offense: 
Poage V. State, 3 O. S. 229. 

Though the existence of the power was once doubted, it is now well 
settled that the court has the power, at the instance'of the defendant, 
after a verdict of conviction, to grant a new trial, without infringing 
this provision of the constitution. . . . The power has been uni¬ 

formly exercised in this state, when, in the judgment of the court, a 
proper case arose: State v. Behimer, 20 O. S. 572. 

The right to review a conviction, on error or otherwise, is not guar¬ 
anteed by the constitution but depends solely on statutory provision: 
Wagner v. State, 42 O. S. 537. 

During progress of a trial on an indictment for “shooting,” the 
evidence showed that the prosecuting witness was not struck by the 
bullet, and the jury was discharged without prejudice to the prosecu¬ 
tion. Upon a further indictment for “shooting at,” the defendant 
pleaded in bar the former indictment, and the proceedings thereon, to 
which a demurrer interposed by the state was sustained. The evidence 
was identical with the evidence at the trial under the first indictment; 
the court, upon error, overruled the demurrer and sustained the plea! 
on the ground that, under the first indictment as well as under the 
second, the defendant could have been found guilty of an assault; 
and the jury having been sworn, after a plea of not guilty to a valid 
indictment, the accused was thereby in jeopardy, and should be dis¬ 
charged: Mitchell V. State, 42 O. S. 383. 




145 


CONSTITUTION OP THE STATE OP OHIO OP 1851. Art.I, § 11. 


Where the first count of an indictment charges the defendant with 
keeping a place where intoxicating liquors are “kept for sale, given 
away, or furnished for beverage purposes,” in violation of G. C. § 6130, 
et seq., and the second count charges him with keeping a place where 
intoxicating liquors are sold in violation of G. C. § 13195, each count 
covering the same period of time, and the evidence at the trial estab¬ 
lishes the fact that during all such period, the defendant was the 
keeper of but one place where intoxicating liquors were sold, there is 
but one offense, and it is error for the court, on a verdict of guilty 
under each count, to inflict the penalties prescribed by each of said 
sections: Weaver v. State, 74 O. S. 53. 

A judgment of the supreme court, on habeas corpus, releasing the 
relator from confinement in virtue of a trial, conviction and sentence, 
because the relator had not been extradited to be tried for the offense 
charged in the indictment is not a bar tp a second arrest, trial, convic¬ 
tion and sentence: Ex parte. McKnight, 3 O. N. P. 255, 4 O. D. (N.P.) 

284; see Ex parte McKnight, 48 O. S. 588. 

The reversal of the judgment in a criminal case places the state, 
and defendant secures a reversal of a verdict, which was silent as to 
the first and second counts and found him guilty under the third count 
of the indictment; he can not thereafter maintain a plea in bar to the 
first and second counts: State v. Dickerson, 7 O. N, P. (N.S.) 208, 19 O. 

D. (N.P.) 48. 

A plea of guilty of selling intoxicating liquor on Sunday in an action 
which was prosecuted as a first offense, but might have been prosecuted 
as a second offense, is a bar to a subsequent prosecution of the same 
defendant in another court for the same sale charged as a second 
offense: State v. Lynch, 7 O. N. P. (N.S.) 365. 

A person convicted of an assault and battery may upon the death of 
the person assaulted be indicted for manslaughter: State v. Ross, 4 O. 

D. (N.P.) 5. 

Article V, of the amendments to the constitution of the United 
States does not operate as a limitation of the power of the state govern¬ 
ments over their own citizens, but is exclusively a restriction upon 
federal power: Prescott v. State, 19 O. S. 184. 

2 Debates, 231, 328, 329, 330, 463, 476, 806, 826, 857, 870. 

Section 11 . Every citizen may freely speak, write, and of the freedom of 
publish his sentiments on all subjects, being responsible for the S'^iibeu^* 

abuse of the right; and no law shall be passed to restrain or 
abridge the liberty of speech, or of the press. In all criminal 
prosecutions for libel, the truth may be given in evidence to the 
jury, and if it shall appear to the jury, that the matter charged 
as libelous is true, an(l was published with good motives, and 
for justifiable ends, the party shall be acquitted. (See Const. 

1802 , Art. VIII, § 6 .) 

See Const. 1802, Art. VIII, § 6. 

Cited: Manufacturing Co. v. Labor Union, 12 O. D. (N.P.) 748. 

Cited in dissenting opinion: McCormick v. Local Unions, 22 O. C. D. 

165. 

Cited by mistake: Haunts v. Lanman Co., 2 O. N. P. (N.S.) 405, 15 
O. D. (N.P.) 64. 

The liberty of the press, properly understood, is not inconsistent 
with the protection due to private character. It has been well defined 
as consisting in “the right to publish, with impunity, the truth,* with 
good motives, and for justifiable ends, whether it respects government, 
magistracy or individuals”: Cincinnati Gazette Co. v. Timberlake, 10 
O S. 548. 

While a full, impartial and correct account of a trial in a court of 
justice, unaccompanied by defamatory comments may, in general, be 
published with impunity, yet this privilege does not extend to the pub¬ 
lication of preliminary proceedings merely, which are of a purely 
ex parte character, such as a statement in detail of the contents or 
substance of an affidavit, made before a police magistrate, with a 
view to the arrest of a party, thereby charged with crime. Such pub¬ 
lication can be justified only by showing the truth of the charge: 

Cincinnati Gazette Co. v. Timberlake, 10 O. S. 548 [see the same case 
below, Timberlake v. Cincinnati Gazette Co., 1 D. 320]. 

An elector who is an attorney has the right to criticize the judg¬ 
ments and conduct of judges in a decent and respectful manner, but 
no man has a right to degrade and intimidate a public officer and bring 
his office into contempt by the publication of libelous matter at any 
time, and the fact that such officer is a candidate for re election will 
not excuse such conduct. One who claims the protection of the con- 




146 


Art.I, § 12. 

CONSTITUTION OP THE STATE OP OHIO OP 1851. 

Transportation, 
etc., for crime. 

stitution, Art. I, § 11, must also, and at all times, be held responsible 
for abuse of the privilege: In re Thatcher, 80 O. S. 492. 

In an action for libel, malice is inferred upon proof of the publi¬ 
cation of defamatory matter, whatever the intention, unless published 
in the performance of some duty, legal or moral, or in the exercise of 
some right or privilege. But where the publication is found not to be 
defamatory in the sense of constituting a libel per se, malice is not pre¬ 
sumed and there can be no recovery in the absence of proof of special 
damage: Leader Printing Co. v. Nethersole, 84 O. S. 118. 

To constitute a publication respecting a person libelous per se, it 
must appear that the publication reflects upon the character of such 
person by bringing him into ridicule, hatred, or contempt, or affects him 
injuriously in his trade or profession. Hence a published statement in 
a newspaper of and concerning a woman that she “had hysterics”, the 
same not containing- any imputation upon her as an individual, or in 
respect to her profession or business, is not, though untrue, per se 
libelous, and can not be made a ground of recovery of damages in the 
absence of proof of special damage: Leader Printing Co. v. Nethersole, 
84 O. S. 118. 

A court of chancery has no jurisdiction to restrain the publication 
of a lewd, obscene and lascivious pamphlet merely because it is libel, 
and will injure plaintiff in his reputation and cause the public to 
believe he is unfit to hold office: Judson v. Zurhorst, 10 O. C. C. (N.S.) 
289, 20 O. C. D. 9 [affirmed, without report, Judson v. Zurhorst, 78 
O. S. 446]. 

Libel consists in the abuse of that constitutional right by mali¬ 
ciously writing or printing pf another, any language or representation 
which is false, and the natural tendency or effect of which is to injure 
such other person in his business standing or reputation in the commu¬ 
nity in which he lives and is known, or in his trade or business, and hold 
him up to ridicule or contempt or in any way to lessen him in public 
esteem: Kahn v. Times-Star, 8 O. N. P. 616, 10 O. D. (N.P.) 599 
[affirmed, without report, Times-Star v. Kahn, 52 O. S. 662]. 

The publisher of a newspaper has exactly the same rights and 
responsibilities to exactly the same extent, for the abuse of that right as 
any other citizen: Kahn v. Times-Star, 8 O. N. P. 616, 10 O. D. (N.P.) 
599 [affirmed, without report, Times-Star v. Kahn, 52 O. S. 662]. 

Verbal statements by union men made to nonunion men, describing 
an existing condition, can not be prevented by injunction: ‘ Boiler and 
Engine Co. v. Benner, 14 O. D. (N. P.) 357. 

No man can be held responsible in a civil proceeding for publishing 
the truth; but he is responsible for publishing a falsehood, unless he 
shows a justification in the occasion or circumstances. To publish that 
which is false and injurious to another, must be deemed an abuse. So 
if the first publication of false and injurious matter be an abuse of the 
right of speech, or of the liberty of the press and a wrongful act, it 
can confer no right on another to repeat or republish. This is also an 
abuse, for which the party repeating or republishing becomes respon¬ 
sible. And it is now well settled that this responsibility can not be 
escaped by giving the name of the author or first publisher. And no 
such doctrine has at any time obtained countenance in reference to a 
libel or written slander. To repeat what a man hears in conversation 
is quite adifferent matter from writing it out and publishing it in a 
newspaper. Where such libel consists in publishing the fact of an 
accusation having been made against another, the defendant must show 
the accusation to be true: Timberlake v. Gazette Co., 12 Dec. Rep. 646. 

2 Debates, 231, 330, 468, 559, 806, 826, 857, 870. 

Section 12. No person shall be transported out of the 
state, for any offense committed within the same; and no' con¬ 
viction shall work corruption of blood, or forfeiture of estate. 
{See Const. 1802 , Art. VIII, §§ 16 , 17 .) 

See Const. 1802, Art. VIII, §§ 16 and 17. 

No man's property can be forfeited as a punishment for crime. 
Hence there is no power to deprive a man of the use of his property, 
unless it be necessary in order to abate an existing nuisance: Miller v. 
State, 3 O. S. 475. 

Felony and feloniously are, with us, words without meaning, 
except as their import is fixed by statute: See obiter in Mitchell v. 
State, 42 O. S. 383. 

Statutes of descent can not be interpreted to exclude a murderer 
from inheriting in the absence of specific statutory provision therefor: 
Deem v. Millikin, 6 O. C. C. 357, 3 O. C. D. 491 [affirmed, without report 
in Deem v. Milliken, 53 O. S. 668]. 

A beneficiary under a life insurance policy who murders the insured, 
thereby forfeits all right under the policy: Filmore v. Insurance Co., 82 
O. S. 208. 

2 Debates, 231, 320, 464, 467, 468, 806, 826, 857, 870. 




147 


CONSTITUTION OF THE STATE OF OHIO OF 1851 


Section 13. No soldier shall, in time of peace, be quar¬ 
tered in any house, without the consent of the owner; nor, in 
time of war, except in the manner prescribed by law. (See 
Const. i8o2. Art. VIII, § 22.) 

See Const. 1802, Art. VIII, § 22. 

2 Debates, 231, 330, 806, 826, 857, 870. 

Section 14. The right of the people to be secure in their 
persons, houses, papers, and possessions, against unreasonable 
searches and seizures shall not be violated; and no warrant 
shall issue, but upon probable cause, supported by oath or af¬ 
firmation, particularly describing the place to be searched and 
the person and things to be seized. (See Const. 1802, Art. VIII, 
§ 5-) 

See Const. 1802, Art. VIII, § 5. 

This safeguard against unreasonable seizures, the legislature has 
undertaken to carry into effect, by prescribing the conditions under 
which the power to issue process for the apprehension of alleged crim¬ 
inals may be exercised by justices of the peace (G. C. §§ 13494 and 
13496): Truesdell v. Combs, 33 O. S. 186. 

No person shall be placed on trial for a crime against the laws of 
this state upon the mere information of a public prosecutor, nor until 
he has been charged with the commission of such crime upon oath or 
affirmation: Eichenlaub v. State, 36 O. S. 140. 

One charged with the commission of a misdemeanor was prosecuted 
by information, and the information being unsupported by oath or affir¬ 
mation, the accused moved to quash it for that cause, which motion was 
overruled. It was held that iji overruling such motion there was error: 
Eichenlaub v. State, 36 O. S. 140. 

The act providing for proceedings against, and the commitment to a 
house of refuge of destitute and homeless minors, whose fathers are 
living, without notice to the fathers, is not in conflict with this section, 
as a full and complete remedy by habeas corpus is provided by the act 
for any infringement of parental rights: House of Refuge v. Ryan, 37 
O. S. 197; see, also. State, ex rel., v. Stiles, 12 O. D. (N.P.) 338. 

Sections 4364-42, 4364-43, 4364-44 and 4364-45, Revised Statutes, 

making it a crime to have in possession for use or sale certain bottles 
or other vessels without the written consent of the owner, and providing 
for search warrant to seize and restore such property to the owner, are 
invalid, being in conflict with Art. I, §§ 1, 14 and 19, of the constitution 
of Ohio: State v. Schmuck, 77 O. S. 438. 

An ordinance under the power conferred by § 3670 to regulate 
and license chattel mortgage and salary loan brokers, requiring every 
person engaged in such business to file with the auditor of the city, 
weekly, a detailed record of every loan made during the week preceding, 
to remain there as a permanent record open to the inspection of the 
mayor and chief of police, is not violative of § 14 of the bill of rights, 
which provides, “The right of the people to be secure in their persons, 
houses, papers and possessions against unreasonable searches and 
seizures shall not be violated, and no warrant shall issue, but upon 
probable cause, supported by oath or affirmation, particularly describing 
the place to be searched and the person and things to be seized,” 
and is not unreasonable: Banning v. Cincinnati, 81 O. S. 142. 

That part of G. C. § 12561 which provides that “whoever buys, 
receives or unlawfully has in his possession any of the aforesaid 
articles (referring to journal brasses, nuts, bolts., etc., removed from 
railway cars," etc.), shall upon conviction thereof be imprisoned, * * *” 
is constitutionally invalid: Kilbourne v. State, 84 O. S. 247. 

Cited as Art. I, § 4. 

The power given by G. C. § 4594 by which a clerk of the police 
court, when an affidavit charging an offense is filed, may issue a warrant, 
does not contravene this section: Molitor v. State, 6 O. C. C. 264, 3 O. C. 
D. 445. 

No person can be placed on trial for a crime agains't the laws of 
this state until he has been charged with the commission of such crime 
upon oath or affirmation. The mere information of a public prosecutor 
is insufficient: Smith v. State, 12 O. C. C. 458, 4 O. C. D. 35. 

Proceedings for contempt of court are not controlled by Art. I, § 14, 
and no information supported by affidavit is necessary: In re State v. 
Post, 4 O. N. P. 157, 6 O. D. (N.P.) 200. 

The language of § 4 of the amendments to the constitution of the 
United States being identical with that of § 14, Art. I, of the constitu¬ 
tion of Ohio, although the former is a limitation only on the federal 


Art.I, § 13. 


Of quartering 
troops. 


Search warrants 
and general 
warrants. 




148 


Art.I, § 15. 


No imprison¬ 
ment for debt, 


Of redress in 
courts. 


CONSTITUTION OP THE STATE OP OHIO OP 1851. 


government, the reasonings of the United States courts concerning it 
are applicable to this section of the Ohio constitution: Cleveland Elec¬ 
tric Co. V. Hitchens, 3 O. N. P. (N.S.) 57, 15 O. D. (N.P.) 522. 

The police court of Cincinnati has no jurisdiction over an accused 
person, and no power or authority to try his cause or impose sentence 
upon him, except on a warrant issued upon oath or affirmation charging 
him with the commission of a crime: Stief v. Cincinnati, 19 O. D. (N.P.) 
484, 6 O. U. R. 602. 

2 Debates, 231, 330, 464, 806, 826, 857, 870. 

Section 15 . No person shall be imprisoned for debt in 
any civil action, on mesne or final process, unless in cases 
of fraud. {See Const. 1802 , Art. VIII, § 15 .) 

See Const. 1802, Art. VIII, § 15. 

Cited by mistake for Art. I, § 19: Freeman v. Hunter, 7 O. C. C. 117, 
3 O. C. D. 689 [affirmed, without report. Hunter v. Freeman, 51 O. S. 574]. 

This constitutional provision clearly contemplates legislation before 
any arrest could be made in civil actions though fraud may have inter¬ 
vened. Courts, therefore, whether of general or limited jurisdiction, 
have now no common law power to authorize arrests in such cases, 
and the power, if it exists at all, must have been conferred by express 
legislation: Spice v. Steinruck, 14 O. S. 213. 

The provision in G. C. § 12123, directing the putative father to be 
committed to jail in defauU of giving security to perform the order of 
the court charging him wifh the maintenance of his illegitimate child, 
is not in conflict with this section. The sum in which the defendant is 
charged with the maintenance of the child is not a debt within the 
meaning of this provision of the constitution: Musser v. Stewart, 21 O. 
S. 353. 

General Code § 13718, authorizing the arrest on execution of a party 
against whom a fine has been adjudged and his imprisonment until 
such fine be paid, or he be otherwise discharged according to law, is 
not unconstitutional: In re Beall, 26 O. S. 195. 

This section has no application to imprisonment by a court as for a 
contempt, because of the refusal by the pa.rty so imprisoned to obey an 
order of the court to pay money to a receiver in proceedings in aid of 
execution: White v. Gates, 42 O. S. 109. 

Money obligations arising upon contract, express or implied, and 
judgments rendered thereon, are debts within the purview of § 15, of 
the bill of rights, which forbids imprisonment for debt in civil actions: 
Bank V. Becker, 62 O. S. 289. 

' A final money decree for alimony is not a debt within the purview 
of the constitutional inhibition against imprisonment for debt, but is 
such an order as that, under favor of § 12137, punishment as for a con¬ 
tempt may follow a willful failure to comply with it: State v. Cook, 66 
O. S. 566. 

An order to pay alimony pendente lite is not within the clause of 
the constitution forbidding imprisonment for debt, except in case of 
fraud: Kaderabek v. Kaderabek, 3 O. C. C. 419, 2 O. C. D. 236. 

A judgment debtor who has property which he himself has disclosed 
and which he refuses to deliver to the receiver may be imprisoned for 
contempt: In re Concklin, 5. O. C. C. 78, 3 O. C, D. 40. 

2 Debates, 231, 330, 331, 464, 466, 806, 826, 857, 870. 

Section 10, All courts shall be open and every person, for 
an injury done him in his land, goods, person, or reputation, 
shall have remedy by due course of law, and shall have justice 
adrninistered without denial or delay. Suits may be brought 
against the state, in such courts and in such manner, as may be 
provided by law. (As amended September 3 , 1912 .) 

Vote: “Yes,” 306,764; “No,” 216,634. 

Original § 16 read as follows: “Sec. 16. [Of redress in courts.] All 
courts shall be open, and every person, for an injury done him in his 
land, goods, person, or reputation, shall have remedy by due course of 
law; and justice administered without denial or delay, (See Const 
1802, Art. VHI, § 7.)” 

See Const. 1802, Art. VHI, § 7. 


I. Applied, cited, construed, re¬ 
ferred to, etc. 

II. Scope and origin. 

III. Courts shall be open. 


IV. Due course of law. 

V. Waiver of right to resort to 
courts. 

VI. Etfeet on specific statutes. 



149 


CONSTITUTION OF THE STATE OP OHIO OP 1851. 


I. applied, cited, construed, referred to, etc. 

Cincinnati v. Steinkamp, 9 O. C. C. 178, 6 O. C. D. 85 [affirmed, Cin¬ 
cinnati V. Steinkamp, 54 O. S. 284]; McAlpin v. Clark, 1 O. N. P. 195, 
2 O. D. (N.P.) 160; cited by mistake, Lally v. Parr, 6 O. N. P. 73, 
9 O. D. (N.P.) 119; Fogarty v. Cincinnati, 7 O. N. P. 100, 9 O. D. (N.P.) 
753; Manufacturing Co. v. Polishers’ Union, 8 O. N. P. 574, 11 O. D. 
(N.P.) 643; Appel v. Insurance Co., 4 O. N. P. (N.S.) 229, 16 O. D. (N.P.) 
499; McCaslin v. Perrysburg, 6 O. N. P. (N.S.) 48, 18 O. D. (N.P.) 196; 
The Post Publishing Co. v. Butler, 137 Fed. 723, 71 C. C. A. 309, 14 
O. F. D. 631, 3 O. L. R. 57. 

Cited by mistake for Art. IT, § 16: Newton v. Commissioners, 26 O. 
S. 618. 


II. SCOPE AND ORIGIN. 

This section is copied from the constitution of 1802: Tappan v. 
Tappan, 6 O. S. 64. 

This provision, like other provisions of the written constitution, 
prevails in case of conflict between it and pre-existing practices of 
common law: Railway v. Keith, 67 O. S. 279. 

III. COURTS SHALL BE OPEN. 

That “all courts shall be open’’ is ordained by the constitution, and 
it is not within the power of the legislature to abridge the period within 
which an existing right may be so asserted, as that there shall not 
remain a reasonable time within which an action may be commenced: 
Lafferty v. Shinn, 38 O. S. 46. 

The mere absence from the state of the justice of the peace who 
rendered the final judgment in an appealable case, can not defeat the 
right of appeal where the party desiring to appeal has, within the time 
allowed by law, executed an appeal bond with an acceptable surety and 
left said bond in the office of the trial justice of the peace and has other¬ 
wise done everything within his power to perfect his said appeal: 
Cross-Tie Company v. Railway, 10 O. N. P. (N.S.) 412, 20 O. D. (N.P.) 
565. 


IV. DUE COURSE OF I.AAV. 

“Due course of law” implies and requires that the parties litigant 
shall each have a day in court: Railroad v. Sullivan, 32 O. S. 152. 

General Code § 11343 as amended and supplemented (94 v. 295), 
changing the presumption and burden of proof as to malice, contra¬ 
venes this section: Byers v. Printing Co., 84 O. S. 408. 

The constitutionality of G. C. § 11343 was upheld by regarding it as 
giving an option to the party injured to stand upon his rights under the 
old law or to waive a part of his rights by demanding and accepting 
a retraction under G. C. § 11343: Post v. Butler, 137 Fed. 723, 71 C. C. A. 
309, 14 O. F. D. 631, 3 O. L. R. 57, 

General Code § 6308, which provides that actions for injury to 
person or property caused by the negligence of the owner of any 
automobile, may be brought by the party injured against such owner 
in the county where such injured party resides, and that summons may 
issue to the sheriff of any county within the state wherein the defend¬ 
ant resides, to be served as in other civil actions, is a constitutional 
and valid exercise of legislative power: Allen v. Smith, 84 O. S. 283. 

Under this section a court can not decide hypothetical questions of 
law which are not directly involved in the judicial proceeding for the 
case pending before it: State v. Baughman, 38 O. S. 455. 

“Due course of law” means that such course of law shall be enacted 
as will require that he whose property is about to be taken, shall have 
notice of the time and place of hearing, of what is sought to be appro¬ 
priated and an opportunity to be heard in his own behalf. Any law 
which seeks to deprive him of his property -without such proceeding, 
is in direct opposition to the letter and spirit of the constitution: 
Harrison v. Sabina, 1 O. C. C. 49, 1 O. C. D. 30. 

The right of a turnpike company to take toll is a property right 
which can not be taken away without due process of law: Turnpike 
Co. V. Waechter, 2 O. C. C. (N.S.) 21, 15 O. C. D. 605. 

Where imprisonment, as a part of a sentence upon conviction of 
assault, is imposed “until the fine and costs are paid,” it is the duty of 
the court to add “or secured to be paid or he be otherwise legally dis¬ 
charged.” Without these words the judgment would be equivalent to a 
life sentence and would be illegal: Ex parte Mullaney, 8 O. N, P. 49, 10 
O. D. (N.P.) 419. 

The general assembly may pass an act authorizing a county to pay 
a demand not legally enforceable, but for which it has received a 
valuable consideration and which in equity and good conscience It 


Art.I, § 16. 





150 


Art.I, § 16. CONSTITUTION OP THE STATE OP OHIO OP 1851. 


ought to pay, although the supreme court without deciding the claim 
to be illegal, has enjoined the county from paying it: State, ex rel., 
V. Gibson, 2 O. N. P. (N.S.) 221, 15 O. D. (N.P.) 73 [affirmed. State, 
ex rel., v. Gibson, 4 O. C. C. (N.S.) 433, 16 O. C. D. 784 [affirmed, 
without report, State, ex rel., v. Gibson, 71 O. S. 509]. 

See, also, cases cited* under VI, this section. 

V. WAIVER OF RIGHT TO RESORT TO COURTS. 

Courts are created by virtue of the constitution and inhere in our 
bodies politic as a necessary part of our system of government, and it 
is not competent for any one, by contract or otherwise, to deprive him¬ 
self of their protection. The right to appeal to the courts for the redress 
of wrongs is one of those rights which is, in its nature, under our con¬ 
stitution inalienable, and can not be thrown off or bargained away: 
Railroad v. Stankard, 56 O. S. 224. 

One of the rules in the relief department of a railroad company pro¬ 
vided that all claims of beneficiaries should be submitted to the deter¬ 
mination of the superintendent whose decision should be final and 
conclusive, unless appealed to the advisory committee, and in case of 
such appeal, the decision of the committee should be final and con¬ 
clusive upon all parties without exception or appeal; it was held that 
after the rejection of a valid claim by the advisory committee, the 
beneficiary could maintain an action in the court for the recovery of 
the money due thereon, and that such rate is not a bar to the action: 
Railroad v. Stankard, 56 O. "S. 224. 

A contract whereby an express company stipulates for immunity 
from its wrongful negligence, is within the inhibition of the rules that 
parties can not by contract take away the jurisdiction of the courts: 
Garrison v. Railway, 15 O. D. (N.P.) 557, 3 O. L. R. 134, 1 Hosea, 358. 

The rule which declares invalid contracts whereby an employer 
undertakes to exempt himself from liability to his employe, on account 
of negligence resulting in injury is not confined in Ohio to cases where 
railway companies are the employers, but extends to employers and 
employes generally: Garrison v. Railway Company, 15 O. D. (N.P.) 
557, 3 O. R. R. 134, 1 Hosea, 358. 

A railroad can not prevent emriloyes from going into court by pro¬ 
viding that all claims under the relief department shall be submitted to 
the superintendent and his decision be final: Railroad v.-Stankard, 66 
O. S. 224. 

VI. EFFECT ON SPECIFIC STATUTES.- 

The act providing for proceedings against, and the commitment to, 
a house of refuge of destitute and homeless minors, whose fathers are 
living, without notice to the fathers, is not in conflict with this section, 
as a full and complete remedy by habeas corpus is provided by the act 
for any infringement of parental rights: House of Refuge v. Ryan, S7 
O. S. 197. 

A statute imposing a tax upon the business of trafficking in intoxi¬ 
cating liquors which provides for its collection, and imposes penalties 
for its nonpayment, and for the refusal of a person engaged in the 
business to make return, is not in conflict with this section nor with 
the fourteenth amendment to the constitution of the United States: 
Adler v. Whitbeck, 44 O. S. 539. 

General Code §§ 8568 to 8570 and 12464, providing for filing instru¬ 
ments pertaining to conditional leases and sales of personal property, 
are not in conflict with the constitution: Weil v. State, 46 O. S. 450. 

General Code § 11343, as amended and supplemented in 94 v. 295, 
changing the presumptions and burden of proof as to malice is uncon¬ 
stitutional by reason of this section: Byers v. Printing Co., 84 O. S. 408. 

General Code §§ 6209 and 6210 are not in conflict with the four¬ 
teenth amendment to the constitution of the United States, nor with 
§ 16, of Art. I, of the constitution of this state. They neither deprive 
the owner of his property, nor of his remedy by due course of law: 
Mullen V. Peck, 49 O. S. 447. 

Revised Statutes § 2316, which authorized municipal corporations to 
postpone, until after a proposed public improvement should have been 
completed a judicial inquiry into claims for damages filed on account 
thereof, by owners of abutting property, was not in conflict with 
Art. I, § 16, of the constitution of 1851: Toledo v. Preston, 50 O. S. 361. 

A law, although not giving notice, states the time of meeting of a 
board, is valid, since all must take notice of the fact; and although no 
appeal is provided for from the board to a higher authority in cases of 
excessive valuation, injunction will lie: State, jex rel., v. Jones, 51 O. S. 
492. 

The legislature may provide for the protection of fish and to that 
end may declare nets set or used contrary to law a public nuisance and 
that they may be destroyed by wardens and other executive officers, and 
§ 6968-2 of the Revised Statutes, as amended April 26, 1898 (93 O. L. 303), 



151 


CONSTITUTION OF THE STATE OF OHIO OF 1851. 


(see G. C. § 1398, et seq.), is not in that respect unconstitutional on the 
ground that it deprives the citizen of his property without due process 
of law: State v. French, 71 O. S. 186; compare, Edson v. Crangle, 62 
O. S. 49. 

The statutes on the subject of cleaning and repair of ditches are 
valid (notice amendments in G. C. § 6691); Taylor v. Crawford, 72 
O. S. 560. 

An act entitled, “An act to prohibit the use of fictitious names in 

partnership” is valid (G. C. §§ 8099 to 8105): Hartzell v. Warren, 11 O. 

C. C. 269, 5 O. C. D. 183. 

The act of April, 1904, for the relief of county treasurers and 
county commissioners, is not a legislative interference with the judg¬ 
ment of a court, and is valid: State, ex rel., v. Gibson, 4 O. C, C. (N.S.) 
433, 16 O. C. D. 784 [affirmed, without report. State, ex rel., v. Gibson, 
71 O. S. 509]. 

The Winn law (G. C. § 6193, et seq.) is constitutional, even as 

against the owners of a house of ill-fame; State v. Allen, 3 O. N. P. 

201, 6 O. D. (N.P.) 43. 

General Code § 2140, which provides for the transfer of a prisoner 
from the Ohio reformatory to the Ohio penitentiary is not a violation 
of this section; In re Clayton, 13 O. D. (N.P.) 546. 

Sections 4914, 4916 and 4918, of the Revised Statutes, so far as they 
authorize the probate court to declare a turnpike road abandoned and 
vacated as a toll road, and thereby to become a free road, without the 
intervention of a jury, or the right of appeal whereby such jury 

could be had to determine whether the road or a part thereof has been 
out of repair for the preceding six months, within the statutory mean¬ 
ing, are in conflict with § 5, Art. I, of the constitution; “The right of 
trial by jury shall be inviolate;” § 16, Art. I, of the constitution: 

“Every person, for an injury done him in his lands and goods, shall 
have remedy by due course of law;” the provision of § 1, Art. XIV, 
of the amendments of the constitution of the United States, that 

no person shall be deprived of property without due process of law: 

Turnpike Co. v. Parks, 50 O. S. 568. 

Section 6563a, Revised Statutes, providing: “If the plaintiff, in any 
action for wages, recover the sum claimed by him in his bill of par¬ 
ticulars, there shall be included in his costs such fee as the court 
may allow, but not in excess of five dollars, for his attorney. But 
no such attorney fee shall be taxed in the costs unless said wages 
have been demanded in writing, and not paid within three days after 
such demand. If the defendant appeal from any such judgment, and 
the plaintiff on appeal recover a like sum, exclusive of interest, from 
the rendition of the judgment before the justice, there shall be in¬ 
cluded in his costs such additional fee, not in excess of fifteen dollars, 
for his attorney, as the court may allow,” was held to be unconsti¬ 
tutional and void: Coal Co. v. Rosser, 53 O. S. 12. 

The remedy by due course of law guaranteed by § 16, of the bill 
of rights, extends to all the adversary rights of persons in property, 
and requires that before there is a judicial determination affecting 
such right process to obtain jurisdiction of the person claiming it 
shall be issued and served, except that the legislature may provide 
for a substituted or constructive service to be made when actual 
service is impracticable. The act of April 27, 1896, entitled “An act to 
provide for the registration of land titles in Ohio,” etc. (92 O. L. 220), 
is repugnant to this section of the constitution: State, ex rel., v. 
Guilbert, 56 O. S. 575. 

Section 6968, Revised Statutes, as amended February 17, 1892 (89 
O L. 26), is in conflict with § 16, Art. I, of the constitution, of this 
state, and is therefore void, for the reason that it confiscates property 
without due course of law: Edson v. Crangle, 62 O. S. 49; see, also. 
State V. Owen, 3 O. N. P. 181, 4 O. D. (N.P.) 163. 

The act of April 4, 1902, entitled, “An act to prevent fraud in the 
purchase, disposition or sale of merchandise” (95 O. U. 96), is repug¬ 
nant to the first article of the constitution, because it places an 
unwarrantable restriction upon the rights of the individual to acquire 
and possess property, and because it contains a forbidden discrimina¬ 
tion in favor of a limited class of creditors: Miller v. Crawford, 70 
O S. 207; see, also. Wright v. Crawford. 13 O. D. (N.P.) 607. 

General Code § 6451 is not invalid because it fails to provide for 
notice to the owners of lands crossed by the ditch: Zimmerman v. 
Canfield, 42 O. S. 463. 

This section does not render invalid the statute which creates the 
State Liability Board of Awards, and confers powers thereon (G. C. 
§ 1465-37, et seq., 102 v. 525): State, ex rel., v. Creamer, 85 O. S. 349. 

This section does not render invalid the statute which authorizes 
the state board of health to compel municipal corporations to construct 
sewage systems (G. C. § 1249, et seq.): Board of Health v. Greenville, 
86 O. S. 1 [reversing Greenville v. Demorest, 14 O. C. C. (N.S.) 113. 

2 Debates, 337, 464, 806, 826, 857, 870. 


Art.I, § 16. 




Art.I, §17. CONSTITUTION OP THE STATE OP OHIO OP 1851. 


Hereditary priv¬ 
ileges, etc. 


Suspension of 
laws. 


Of the inviolabil¬ 
ity of private 
property. 


Section 17. No hereditary emoluments, honors, or priv¬ 
ileges, shall ever be granted or conferred by this state. (See 
Const. 1802 , Art. VIII, § 24 .) 

See Const. 1802, Art. VIIT, § 24. 

2 Debates, 231, 335-337, 466, 467, 806, 826, 857, 870. 

Section 18. No power of suspending laws shall ever be 
exercised, except by the general assembly. (See Const. 1802 , 
Art. VIII, § 9 .) 

See Const. 1802, Art. VIII, § 9. 

Cited: French v. Shirley, 7 O. N. P. 26, 9 O. D. (N.P.) 181. 

The authority conferred upon commissioners of counties and 
trustees of townships to grant general and special permission for 
animals named to run at large, as conferred by § 2, of the act of April 
13, 1865 (62 V. 185) (see G. C. § 5811, et seq.), was within the scope of 
legislative power, and does not conflict with this section: Fox v. Fox, 
24 O. S. 335. 

Provisions in local option statutes authorizing the residents of a 
district to determine for a limited period whether intoxicating liquors 
shall or shall not be sold in such district, and providing for another 
determination at the expiration of such period, do not violate this 
section: Lloyd v. Dollison, 3 O. C. C. (N.S.) 328, 13 O. C. D. 571 
[affirmed, without report. State v. Dollison, 68 O. S. 688; State v. Dol¬ 
lison, 194 U. S. 445, 14 O. F. D. 3801. 

2 Debates, 231, 337, 464, 468. 469, 806, 826, 857, 870. 


Section 19. Private property shall ever be held inviolate, 
but subservient to the public welfare. When taken in time of 
war or other public exigency, imperatively requiring its im¬ 
mediate seizure or for the purpose of making or repairing roads, 
which shall be open to the public, without charge, a compensation 
shall be made to the owner, in money, and in all other cases, 
where private property shall be taken for public use, a com¬ 
pensation therefor shall first be made in money, or first secured 
by a deposit of money; and such compensation shall be assessed 
by a jury, without deduction for benefits to any property of 
the owner. (See Const. 1802 , Art. VIII, § 4 .) 

See Const. 1802, Art. VITI, § 4. 

As to juries and the right thereto, see, also. Art. I, § 5; Art. I, 
§10; and Art. XIII, §5. 


T. Ai>plied, cited, con.stnied, re¬ 
ferred to, etc. 

TT. Scope and effect. 

III. Private property inviolate. 

IV. Subserv’ient to public wel¬ 

fare. 

V. Taking private property for 
public n.se. 

A. What constitutes taking. 
R. For w'hat purposes prop¬ 
erty may be taken. 

C. What m.ay be taken. 
r». When title passes. 

K. Estoppel. 

VI. Compensation. 

Nature and amount. 

B. In money. 

C. When payable. 

D. Jury. 

1. Under constitution of 

1802. 

2. Under constitution of 

1851. 

VII. No deduction for benefits. 
VIJI. Effect of constitutional pro¬ 
vision on specific statutes. 


A. Notice. 

B. Taxes and assessments. 

C. Corporation taxes. 

D. Tax sales. 

E. Public improvements. 

F. Quasi-public purposes. 

O. Railways. 

H. Entailed estates. 

I. Occupying claimants. 

.1. Intoxicating liquor. 

K. Fish and game laws. 

Ij. Pure food laws. 

i>I. Billboards. 

N. Cemeteries. 

O. Animals. 

P. Dealers in second-hand 

articles. 

Q. Conditional sales. 

R. Replevin. 

S. Mob violence. 

T. Restriction upon con¬ 

tract. 

U. Liability of public offi¬ 

cers. 

V. Rules of evidence. 


I. APPLIED, CITED, CONSTRUED, REFERRED TO, ETC. 

Giesy v. Railroad, 4 O. S. 308; Newton v. Commissioners. 26 O. S. 
618; Frevert v. Finfrock, 31 O. S. 621; Chamberlain v. Cleveland, 34 
O. S. 551; Peters v. McWilliams, 36 O. S. 155; State, ex rel., v. Frame, 
39 O. S. 399; McCombs v. Stewart, 40 O. S. 647; State, ex rel., v. 





153 


CONSTITUTION OF THE STATE OF OHIO OF 18d1. 


Hamilton, 47 O. S. 52; State, ex rel., v. Toledo, 48 O. S. 112; McQuigg 

V Cullins, 56 O. S. 649; Turnpike Co. v. Parks, 50 O. S. 568; Southern 

Gum Co. V. Laylin, 66 O. S. 578; Railway v. Waechter, 70 O. S. 113; 
Miller v. Crawford, 70 O. S. 207; Harrison v. Sabina, 1 O. C. C. 49, 
1 O. C. D. 30; In re Georg-e, 5 O. C. C. 207, 3 O. C. D. 104; Carlisle v. 
Cincinnati, 8 O. C. C (N.S.) 46, 19 O. C. D. 81; Furniture Co. v. Railway, 
7 O. N. P. 639, 9 O. D. (N.P.) 674; Railroad v. Railway, 3 O. N. P. (N.S.) 
109, 16 O. D. (N.P.) 777; Hume v. Traction Co., 13 O. D. (N.P.) 70; 
Miller v. Railway, 13 O. D. (N.P.) 418; Fitton v. State, 1 O. N. P. (N.S.) 
133, 14 O. D. (N.P.) 156; Ritter v. Railway, 6 O. N. P. (N.S.) 161, 18 

O. D. (N.P.) 846; Norwood v. Baker, 172 U. S. 269, 12 O. F. D. 228; 

Shooting Club v. Casperson, 193 U. S. 189, 14 O. F. D. 319; Traction Co. 
V. Hof, 174 U. S. 1; Venable v. Schafer, 7 O. C. C. (N.S.) 337, 18 O. C. D. 
202 . 

Cited by mistake as Art. I, § 15: Freeman v. Hunter, 7 O. C. C. 117, 
3 O. C. D. 689. 

Cited in dissenting opinion: Cincinnati v. Ferguson, 12 O. E>. 
(N.P.) 439. 


II. SCOPE AND EFFECT. 

This section is construed in connection with Art. XIII, § 5, of the 
constitution of 1802: Railroad v. Bolen, 76 O. S. 376. 

Under the provisions of the constitution of 1802 that private prop¬ 
erty shall be held inviolate, but subservient to the public welfare, 
provided compensation in money be made the owner, it was held that 
compensation was not required to be first made, and that it might be 
taken for such use where provision for the assessment and payment 
is made, whether the owner was actually paid or not, it being suffi¬ 
cient if provision be made by law for compensating him; also, that 
benefits conferred might be set off against the value of the property 
so taken. No jury being required, it was the practice, authorized by 
statute, to have compensation determined by three commissioners who 
were sent out to view the premises. Manifest abiises having arisen 
under this method of appropriating private property, the constitution 
makers of 1851 made a radical change in the procedure by § 19, of the 

bill of rights, and § 5, of Art. XIII, by which it is provided (§ 19) 

respecting compensation that in time of war or other public exigency, 
imperatively requiring its immediate seizure, etc., a compensation 
shall be made the owner in money, and in all other cases a compen¬ 
sation for the property so taken shall first be made in money or 

secured by a deposit of money, and s\ich compensation shall be 

assessed by a jury without deduction for benefits. And (§5) that no 
right of way shall be appropriated to the use of any corporation until 
full compensation therefor be first made in money, or first secured by 
a deposit of money, irrespective of any benefit, which compensation 
shall be ascertained by a jury of twelve men in a court of record. 
The implication clearly follows that the jury intended is a consti¬ 
tutional jury of twelve competent men, and their conduct to be 
directed by a court. “The word ‘jury’ means a tribunal of 
twelve men, presided over by a court, and hearing the allegations, 
evidence and arguments of the parties.” Lamb v. Lane, 4 O. S. 167. 
“Trie word ‘jury’ in the section cited, as well as in the other places in 
which it occurs in the constitution, has uniformly been construed to 
mean a tribunal of twelve men, presided over by a court, and under 
its direction, hearing the allegations, evidence and arguments of the 
parties, and declaring the truth upon the evidence submitted, and the 
law given them by the court”: Smith v. Railroad, 25 O. S. 91. 

To give effect to these constitutional requirements, the general 
assembly, at its session of 1852 (50 O. L. 201), enacted a general appro¬ 
priation act “to provide for compensation to owners of private property 
appropriated to the use of corporations,” which is now, with various 
amendments, codified as G. C. Part HI, Title HI, Chapter 5, §§ 11038 to 
11091: Railroad v. Bolen, 76 O. S. 376. 

This provision prevails over the rules of common law and the 
rights given thereby: Railway v. Keith, 67 O. S. 279. 

The constitution of 1851 restricted the exercise of the right of 
eminent domain as it was exercised under the constitution of 1802 and 
necessitated new legislation on the subject of appropriations: Rail¬ 
road V. Tod, 72 O. S. 156. 

Neither this section nor Art. XHI, § 5, confer the power of eminent 
domain, but they simply prescribe the method for the exercise of such 
pow'er and the limitations thereof. The power itself passes under the 
general grant of legislative power in Art. II, § 1: Giesy v. Railway, 

4 O. S. 308. . ^ 

Where the legislature, in the constitutional exercise of the right 
of eminent domain, authorizes an act, the necessary consequence of 
which is to injure the property of another, and at the same time pre¬ 
scribes the particular mode in which the damages shall be ascertained 


Art.I, § 19. 




154 


Art.I, § 19. CONSTITUTION OP THE STATE OP OHIO OP 1851. 


and compensated, giving- to the injured party the right to resort to 
the same, the person or corporation acting under such authority, and 
within the scope thereof, is not a wrongdoer, nor liable to an action 
for a tort, but must be proceeded against under the statute remedy: 
Railway v. Whitacre, 8 O. S. 590. 

No valid appropriation of property for public use can be made 
without a law which provides compensation to the owner, to be 
assessed in the mode prescribed in the constitution. The constitution 
in this particular, does not execute itself: McArthur v. Kelly, 5 O. 140; 
Foote V. Cincinnati, 11 O. 408; Lamb v. Lane, 4 O. S. 167; Shaver v. 
Starrett, 4 O. S. 494; Watson v. Trustees, 21 O. S. 667. * 

The subject of roads is of so general a nature that it is placed 
alongside of “a time of war and other public exigencies,” and it is 
provided that private property may be taken for roads without first 

making compensation therefor: Hixson v. Burson, 54 O. S. 470. 

Private corporations are persons within scope of this section: 
Railroad v. Gilmore, 8 O. C. C. 658, 4 O. C. D. 366. 

Section 19, Art. I, is a limitation upon § 6, Art. XTIT, of the con¬ 

stitution: Adkins v. Toledo, 6 O. C. C. (N.S.) 433, 17 O. C. D. 417. 

The constitution does not undertake to provide for the mode of 
procedure to appropriate private property to public use. This is pro¬ 
vided bv legislative enactment: Garvin v. Columbus, 5 O. N, P. 236, 
5 O. D. (N.P.) 333. 

If a m.unicipal corporation is authorized by statute to change the 
grade of a street and no provision is made for compensation to the 
owners of abutting property, such property holders have action at 
law to recover compensation for injury to the property in a proper 
case: Banking Co. v. Cleveland, 1 O. N. P. (N.S.) 493, 14 O. D. (N.P.) 33 

The fifth amendment of the federal constitution is a restriction on 
federal power, and not on the power of the states; and where the 
supreme court of a state gives no affirmative expression of its views 
in that regard or respecting the provision of its own constitution as 
to the taking of private property for public uses on compensation 
made, no jurisdiction to review its holding is conferred upon the 
United States supreme court: Shooting Club v. Casperson, 193 U. S. 
189, 14 O. F. D. 319, 2 O. L. R. 366. 

III. PRIVATE PRO PERT INVIOLATE. 

This section prevents the taking of private property for any use 
other than a public use without the consent of the owner: Reeves v. 
Treasurer, 8 O. S. 333. 

It was said in Shaver v. Starrett, 4 O. S. 494, that private property 
could not be taken except for public use, even in the absence of any 
constitutional provision. 

The inviolability of private property guaranteed by § 19, Art. I, 
of the constitution, protects property from indirect as well as direct 
and open amercement, except for public welfare: Haunts v. Lanman, 

2 O. N. P. (N.S.) 405, 15 O. D. (N.P.) 64. 

The definition of a “university” given in G. C. § 7905 can have no 
bearing on the question of the control of a school established by a 
private donor to carry out his purposes in regard to education, and 
endowed by his property and the property of others given for the 
same purpose. The denominating of such a school as a “university” 
does not deprive it of the protection of the constitution of the state 
and the guaranty that all private property shall ever be held in¬ 
violate, notwithstanding it has not yet attained to the full scope of a 
university: State, ex rel., v. Toledo, 5 O. C. C. (N.S.) 277, 16 O. C. D. 
628. 

The statute for the relief of occupying claimants, passed March 
10, 1831 (29 V. 261), requiring the value of the permanent improve¬ 
ments of the bona fide occupant, under color of title, to be paid as a 
condition precedent to the entry and possession of the owner, although 
an encroachment on the rights of private property as settled by the 
common law, rests upon a strong equity in favor of a compensation 
for improvements, which have augmented the value of the land, and 
inured to the benefit of the owner: McCoy v. Grandy, 3 O. S. 463. 

The option which this law gives to the owner of land, after a 
recovery in ejectment, either to take the land on paying for the 
improvements, or to take the amount of its value in money without 
the improvements, secures to the owner the property in the land, and 
at the same time protects the occupying claimant in his equitable 
claim to a compensation for his improvements: McCoy v. Grandy, 

3 O. S. 463. 

But the amendatory act of March 22, 1849 (47 v. 56), giving to 
the occupying claimant the option which the original act gave to the 
owner of the land, thus taking the property away from the owner 
after the solemn form of a recovery and judgment in ejectment, and 
transferring it to his unsuccessful adversary, who is ordered to be 




155 

CONSTITUTION OP THE STATE OP OHIO OP 1851. 


ejected as an intruder on the land, was a palpable invasion of the right 
of private property: McCoy v. Grandy, 3 O. S. 463. 

In case of a mortgage, a judgment lien, a levy under execution, 
assessment of a tax, or other incumbrance on land arising out of the 
owner s liabilities, it is not within the scope of the legislative power 
to take the fee in the land from the owner and transfer it absolutely 
to the person holding the claim, while the owner stands ready and 

insists on discharging the liability and saving his property: McCoy 

V. Grandy, 3 O. S. 463. 

The competency of the legislative power to transfer the property 
of one person to another, without the consent of the former, is not 
shown by any analogy either to proceedings in partition or the bar 
of the statute of limitations. In the case of the former, although the 
right of partition is an incident to the estate of tenancy in common, 
and the division the result of necessity, yet the owner is not divested 
of his property without the opportunity of saving it by a purchase; 

and in the case of the latter, the bar of the statute rests upon a rule 

of evidence raising a presumption that a title has passed, and upon 
this ground the aid of the judicial power is denied to one who has 
slept too long on his rights: McCoy v. Grandy, 3 O. S. 463. 

The occupying claimant law rests upon entirely different ground: 
and in securing to the occupant a compensation for his improvements, 
as a condition precedent to the restitution of the property to the 
owner, it goes to the utmost stretch of the legislative power touching 
the subject. And the amendatory act of 1849, providing for the transfer 
of the land to the occupying claimant without the consent of the 
owner, is in plain conflict with the nineteenth section of the first article 
of the constitution, which declares that “private property shall ever be 
held inviolate,” etc., and is, therefore, by the unanimous opinion of 
the court, pronounced unconstitutional and void: IMcCoy v. Grandy, 
3 O. S. 463. 

IV. SUBSERVIENT TO PUBUIC AVEf.FVRE. 

The power to appropriate property rests upon public necessity, 
and can only be exercised where such necessity exists. But this 
necessity relates rather to the nature of the property and the uses 
to which it is applied, than to the exigencies of the particular case; 
and it is no objection to the exercise of the power that lands, equally 
feasible, could be obtained by purchase: Giesy v. Railroad, 4 O. S. 308. 

It may be exercised directly or indirectly by the general assembly 
without the intervention of the judiciary, except for determining the 
amount of compensation. But the courts possess full power to deter¬ 
mine its proper limits, and to prevent abuses in its exercise: Giesy 
V. Railroad, 4 O. S. 308. 

It may be used to appropriate lands for a public highway of any 
kind, and this whether the road is built and owned by the public or 
by a corporation as a public instrumentality, provided it is kept open 
for public use as a matter of right, or, according to the nature of the 
work, the corporation is made a common carrier of goods or of pas¬ 
sengers: Giesy V. Railroad, 4 O. S. 308. 

The owner of land regularly appropriated to the use of a railroad 
company, under proceedings instituted by the company under laws 
providing therefor, is barred of the common law remedy to sue for and 
recover the damages he may have sustained by the entry of the 
company and the construction of their road upon such land. In such 
case, the bar is equally effectual, although the owner may have 
refused to submit to such proceedings, or to receive the amount 
awarded to him and deposited for his use: Hueston v. Railway, 4 
O. S. 685. 

The question whether or not a ditch will conduce to the public 
health, convenience or welfare, so that it will be of public use, is a 
question of law; and the mere fact that larger and better crops may 
be raised on two farms sought to be drained does not authorize the 
establishment of the ditch: McQuillen v. Hatton, 42 O. S. 202. 

The act of 1893 (90 O. L. 28), requiring township trustees on a 
petition of a majority of abutting owners to open or extend a street, 
without requiring a finding by the trustees, that the public interest 
requires such taking, is unconstitutional and void: Kinney v. DeMar, 
8 O. C, C. 149, 4 O. C. D. 282. 

The secretary of war’s approval of the plans of a county bridge 
across a navigable stream does not confer upon the county commis¬ 
sioners the right to swing said bridge in front of the property of a 
private owner without first acquiring the right to do so: Gawn v. 
Wilson, 7 O. N. P. 33, 9 O. D. (N.P.) 683. 

The interest of the public in public roads, consisting of a per¬ 
petual easement in the land covered by them, for all the actual uses 
and purposes of public travel, may, at the discretion of the general 
assembly, be transferred without any pecuniary equivalent, to a plank 


Art.I, § 19. 





156 


Art.I, §19. CONSTITUTION OP THE STATE OP OHIO OP 1851. 


road company, such plank road still remaining a public highway, and 
subject to the same uses and purposes as before. In such case the 
company becomes the assignee of the public and lawfully possessed 
of the same interest the public had. Such change of the mode of 
supporting an existing highway can not be presumed injuriously to 
affect the rights of the proprietors of land over which it passes, and 
if such injury is claimed to have resulted, it must be proved: Plank 
Road Co. V. Cane, 2 O. S. 420. 

General Code § 3673 must not be interpreted so as to authorize a 
municipal corporation to impose a license fee upon merchants who do 
not sell upon public streets but who only solicit orders at the resi¬ 
dences of their customers, and negotiate future sales there; and if so 
interpreted, it would be invalid as in violation of the right of property: 
Tea Co. v. Tippecanoe, 85 O. S. 120. 


V. TAKING PRIVATE PROPERTY FOR PUBLIC USE. 

A. What constitutes taking. Authority to lay down the neces¬ 
sary structure for a street railway, in a common highway or street, 
and to run cars thereon for the carriage of passengers for hire, may 
be lawfully granted to a company incorporated for that purpose, when 
no private right of the adjoining lot owners is thereby impaired: 
Railway v. Cumminsville, 14 _0. S. 523. 

Injury to property by interfering with travel upon the street on 
which such property is located is actionable even though the obstruc¬ 
tion is at some distance from the property thus injured: Railway v. 
Naylor, 2 O. S. 235. 

In order to constitute a “taking” under the constitution it is not 
essential that there be a physical seizure or appropriation of the 
property. Any actual and material interference with private property 
right constitutes such a taking: Commissioners v. Gates, 83 O. S. 19; 
Mansfield v. Balliett, 65 O. S. 451. 

If the grade of a street has not been established, and property 
which abuts thereon is improved, the municipal corporation is not 
liable for damages caused by the grading of street, if the grade finally 
established is a reasonable and proper one: Crawford v. Delaware, 

7 O. S, 459; Cincinnati v. Penny, 21 O. S. 499. 

If the improvements are constructed after the grade is established 
in reliance upon such grade a property owner may recover for damage 
caused by a subsequent change of grade: Crawford v. Delaware, 7 O. 
S. 459; Railway v. Cumminsville, 14 O. S. 523; Cincinnati v. Penny, 
21 O. S. 499. 

The plaintiffs own a lot abutting on a public street running north 
and south through the center of the village of Nottingham and crossing 
the said railroad at grade north and near their lot. This street 
intersects at right angles other streets, one a short street immediately 
north and another a few hundred feet south of the lot, and two of 
these streets are the means of access to the village from different 
sections of a thickly settled community, so that the plaintiffs’ premises 
are in the business portion of the village. They had improved their 
buildings with reference to the long established grade of the street, 
for both residence and business purposes, and were conducting a trad¬ 
ing business therein. The railway company and the village, by appro¬ 
priate agreement and for the purpose of eliminating the grade 
crossing, caused the construction of a subway under the railway right 
of way, by using for such subway a narrow portion of the east side of 
the forty-foot sti-eet on which the lot abuts, on which portion a con¬ 
crete wall surmounted by an iron fence was erected so that there 
is no access by vehicles, to the subway, without going to the south 
end of the same, a distance of more than two hundred and fifty feet. 
This subway is about fourteen feet below the surface of the ground 
m front of the lot. As a part of the proceedings for the subway, the 
council of the village vacated that portion of the entire street which 
crossed the right of way of the railway company and closed it up, 
tvhich cut off all access by vehicles to plaintiffs’ premises from the 
north, northeast and northwest, unless they pass south through the 
subway and then turn north on the unvacated part of said street. 

The evidence tends to show that the closing of the street at the 
crossing, and the making of the subway diverted travel from the 
unvacated part of the street into the subway and away from plain¬ 
tiffs’ place of business, causing the business thertofore done to locate 
in another part of the village, thus greatly reducing the value of 
plaintiffs’ premises. It was held that on establishing the foregoing 
facts, the owners of the premises are entitled to recover from the 
village and railway company damages caused by their depreciation in 
value: Schimmelmann v. Railway, 83 O. S. 356 [approving Cohen v. 
Cleveland, 43 O. S. 190, and distinguishing Kinnear v Beatty, 65 O. S. 
264], 





157 


CONSTITUTION OP THE STATE OP OHIO OP 1851 


Where the only damag'es complained of by a property owner are 
remote, and not different in kind and hardly more appreciable in 
degree than are suffered by the general public, and there is no direct 
or special invasion of property rights, it can not be said that there 
is a taking of the property within the meaning of the constitution. 

Injunction will not lie to restrain the laying of a spur railway 
track in a public street, under the circumstances presented in this 
case; Herzog v. Railway, 6 O. C. C. (N.S.) 527, 15 O. C. D. 702 [affirmed, 

without report. Railway v. Herzog, 74 O. S. 440]. 

On the application of a property owner who has other adequate 

access to his property an injunction will not be granted to restrain 

the closing of a street or alley: Manufacturing Co. v. Beatty, 65 O. 
S. 264. 

Where the property taken is the merest legal figment and without 
real substance, the owner is not entitled to an injunction because of 
§ 19, Art. I, as a matter of right, when the general equities of the 
case do not commend it to the chancellor’s conscience: Railway v. 
Transportation Co., 1 O. C. C. (N.S.) 117, 15 O. C. D. 146. 

The construction of a railway in a public street in such a way as 
t(» interfere with the use of the street as a means of access to private 
property, will be enjoined unless compensation is made therefor, since 
such use is the taking within the meaning of this constitutional 
provision: Burial Case Co. v. Railway, 4 O. C. C. (N.S.) 365, 14 O. C. 
D. 107. 

The putting of a street to a new and inconsistent use is not 
necessarily a taking of private property within the meaning of the 
constitution. The new use must be' such a use as palpably and in¬ 
juriously affects the adjacent property, and to plead or prove merely 
the invasion of a private right does not stir the conscience of a court 
of equity. 

The use of a street for telephone purposes, being a permanent 
occupancy of a part of a highway by a private corporation for private 
gain, and to that extent an exclusion of the public, is an additional 
servitude for which an abutting owner is entitled to compensation: 
Burns v. Telephone Co., 10 O. C. C. (N.S.) 307, 20 O. C. D. 74. 

Mere silence on the part of the landowner as to the laying of an 
interurban railway track in the highway passing through his land, is 
not consent to the subsequent laying of a switch in said highway. An 
additional burden is imposed upon the landowner by the laying of such 
a switch, and where this is done without compensation being made 
therefor, or consent first obtained, a constitutional right of the land- 
owner is violated and an injunction will lie upon his petition: 
Chambers v. Traction Co., 5 O. C. C. (N.S.) 298, 17 O. C. D. 193 
[affirmed, without report. Traction Co. v. Chambers, 73 O. S. 348]. 

When a city has been enlarged so as to include a tollgate on a 
turnpike, such company can not be compelled to surrender this part 
of its pike without compensations therefor being first made in money: 
Gates V. Turnpike Co., 4 O. N. P. 235, 6 O. D. (N.P.) 337. 

If the owner to whom compensation is to be paid, uses the property 
within the boundary lines of a proposed street after the passage of 
the ordinance, to appropriate for such purpose, he does so at his own 
risk and can not recover for any improvements or erections placed 
thereon after the passage of such ordinance: Toledo v. Bayer, 7 O. N. 
P. 324, 5 O. D. (N.P.) 87. 

If the construction of a railroad in a city will work a material 
injury to abutting property, the owner has a property right in such 
street and is entitled to compensation: Root v. Pennsylvania Co., 7 
O. N. P. 337, 5 O. D. (N.P.) 315. 

A telephone company has no right in Ohio to place its poles in 
the sidewalk or the curb line of a street without first obtaining the 
consent of the abutting property owner, or payment to him of the 
amount of damages which will be caused to his property by the erec¬ 
tion of such poles: Tannian v. Telegraph Association, 1 O. N. P. (N.S.) 
81, 13 O. D. (N.P.) 730. 

The principle announced in Callen v. Electric Eight Compan 5 ’-, 66 
O. S. 166, that “the placing by a private lighting company of poles in 
the curb of the street, and the stringing thereon of electric cables 
and wires for the purpose of furnishing light and energy to private 
takers, is a diversion of the street from the purpose to which it was 
dedicated, and a taking of the property of the abutting owner within 
the meaning of § 19 of the bill of rights,” applies with equal force 
to the laying of a pipe longitudinally with and under the sidewalk 
for the conveyance of natural gas to private consumers; and notwith¬ 
standing the laying of such pipe is under and by virtue of a city 
ordinance, the company can not enjoin interference therewith by 
an abutting property owner, if the putting in of the pipe will injure 
him to an appreciable extent: Gas and Fuel Co. v. Townsend, 1 O. N. P. 
(N.S.) 289, 14 O. D. (N.P.) 5. 


Art.I, § 19. 




158 


Art.I, § 19. CONSTITUTION OP THE S'J’ATE OP OHIO OP 1851. 


The construction and maintenance of a telegraph or telephone 
line upon a highway is a new and additional burden upon the fee to 
which when the highway was established, it was not contemplated it 
would be subjected, and for which the owner is entitled to additional 
compensation; Denver v. Telephone Co., 8 O. N. P. 666, 10 O. D. (N.P.) 
273; see, also, Callen v. Electric Light Co., 66 O. S. 166. 

A street railway company can not appropriate the right to use 
water pipes in a municipality, for a part of its return circuit: Dayton 
V. Railway, 12 O. D. (N.P.) 258. 

Gas pipes in the street impose an additional burden upon the 
easement of an abutting owner for which he is entitled to compensa¬ 
tion: Gas & Fuel Co. v. Townsend, 1 O. N. P. (N.S.) 289, 14 O. D. 
(N.P.) 5. 

In 1901 the Frisbie Company, being the owner of a tract of land 
in East Cleveland, divided it into streets and lots, and filed a plat 
of the allotment with the county recorder. The company adopted a 
general scheme or plan for the improvement of the allotment, and 
placed the lots upon the market for sale, and all the lots were sold, 
and each deed from the company to the various purchasers, except for 
certain lots on one of the streets which lots were left unrestricted 
for business buildings contained the following restriction: “As part 
of the consideration for this deed, it is hereby agreed that the said 
land shall be used exclusively for residence purposes.” The defend¬ 
ant company has now purchased from the various owners several of 
the lots in this allotment for its right of way, and is about to use 
them for the construction and operation of a railroad thereon. 
Each lot owner has an equitable easement which is private property 
and before the property can be used for other than residence purposes, 
the defendant must make compensation to the other lot owners; 
Kuebler v. Railway, 10 O. N. P. (N.S.) 385, 20 O. D. (N.P.) 525. 

When the level of the waters in a state canal, its reservoirs and 
feeders, have been raised, thereby causing an abutting owner’s land 
to be overflowed by water, this constitutes a taking of plaintiff’s prop¬ 
erty within the meaning of this section of the constitution: Ley v. 
Kirtley, 5 O. N. P. (N.S.) 529, 18 O. D. (N.P.) 280. 

To deprive a riparian owner of the right to maintain a milldam 
is a taking of private property; Kiser v. Commissioners, 85 O. S. 129. 

Whether the injury to access to two adjacent lots caused by ex¬ 
tending the track across the street between the lot lines produced of 
the defendant company, is a taking under this section of the consti¬ 
tution was questioned, but not decided, in Railway v. Railway, 3 O. 
N. P. (N.S.) 109, 16 O. D. (N.P.) 777. 

General Code § 6773 which authorizes the taking of private property 
in the improvement of a stream and the removal of an obstruction 
therefrom without compensation therefor to the owner is unconsti¬ 
tutional: Kiser v. Commissioners, 85 O. S. 129. 

General Code §§ 1465-37, et seq., which create a state liability board 
of awards, and provide for an insurance fund to which employers and 
employes may contribute at their option is not a taking of property 
without due process of law; State, ex rel., v. Creamer, 86 O. S. 349. 

B. For what puri>o.se.s property may be taken. The power of 
the state to take the property of its citizens by a tax is not broader 
than the purposes for which the state is formed and so is not wholly 
within the discretion of the legislature, but is subject to the limitation 
that it must be for a public purpose: Commissioners v. State, ex rel., 
75 O. S. 114. 

Property may be appropriated for any purpose which is public in 
its character. Examples of such cases are public streets, Hickox v. 
Cleveland, 8 O. 543; Symonds v. Cincinnati, 14 O. 147; Browne v. Cincin¬ 
nati, 14 O. 541; township roads, Ferris v. Bramble, 5 O. S. 109; Shaver 
V. Starrett, 4 O. S. 494; turnpikes, Kemper v. Turnpike Co., 11 O. 392; 
railroads, Moorhead v. Railway, 17 O. 340; toll bridges. Young v. 
Buckingham, 5 O. 485; the construction of a canal, Cooper v. Williams, 
4 O. 253; Willyard v. Hamilton, 7 O. (pt. 2) 111; the repair of a canal. 
Bates V. Cooper, 5 O. 115; the use of water for a canal, Buckingham 
V. Smith, 10 O. 288; a public wharf. Railway v. Ironton, 19 O. S. 299; 
and ditches and drains. Sessions v. Crunkilton, 20 O. S. 349; Reeves 
V. Treasurer, 8 O. S. 333. 

The draining of wet lands, which not only retard cultivation but 
are a source of malaria, is a sufficient public purpose to justify their 
drainage under eminent domain: Thomas v. Commissioners, 5 O. N. P 
449, 5 O. D. (N.P.) 503. 

The facts being ascertained, the question whether or not a ditch 
will conduce to the public health, convenience or welfare within the 
meaning of G. C. § 6604, so that it will be of public use, is a question of 
law; and thei mere fact that larger and better crops may be raised 
on two farms sought to be drained, does not authorize the establish¬ 
ment of the ditch: McQuillen v. Hatton, 42 O. S. 202. 

Canal commissioners can not appropriate water in order to create 




159 

CONSTITUTION OF THE STATE OP OHIO OP 1851. 


hydraulic power to sell or lease for the benefit of the state: Bucking¬ 
ham V. Smith. 10 O. 288, 

C. AVhat may be taken. Only such interest as will answer the 
public wants, can be taken; and it can be held only so long- as it is 
used by the public, and can not be diverted to any other purpose: 
Giesy v. Railroad, 4 O. S. 308. 

The legislature may authorize the occupation of an easement, 
originally acquired by grant or appropriation, in any manner calculated 
to further the general objects of the acquisition; but may not divert 
it to purposes which exclude the original uses, or lay additional 
burdens upon the land, or destroy, or impair the incidental easements 
of adjoining lot owners in the street or highway. 

This interest of adjoining lot owners is properly protected by the 
constitution, and subject to be taken or appropriated only upon the 
condition that compensation is made: Railway v, Cumminsville, 14 
O. S. 523; see, also. Hatch v. Railway, 18 O. S. 92. 

The owners of unimproved lots can not recover damages from a 
municipal corporation f-or filling, ditching, or cutting down streets, 
being presumed to purchase with a view to a reasonable improvement 
of the streets: Crawford v. Delaware, 7 O. S. 459. 

A claimant for damages in the alteration of a road, is not entitled 
to recover where such alteration merely renders the road less conven¬ 
ient for travel, wuthout directly impairing his access to the road 
from the improvements on his land: Jackson v. Jackson, 16 O. S. 163. 

When a road is surveyed and straightened it must be straightened 
in such a form as not to interfere with private property: Beckwith 
V. Beckwith, 22 O. S. 180. 

A person whose land is taken by municipal authority to make or 
widen streets is entitled to compensation, in money, for the value of' 
the land appropriated to such public use, to be ascertained by a 
jury: Youngstown v. Moore, 30 O. S. 133. 

# A private eleemosynary corporation’s property charged with the 
maintenance of a public charity is still private property, and the 
transfer of absolute control and the property to another college is 
void: State, ex rel., v. Neff, 52 O. S. 375. 

Riparian rights are property within the purview of § 19, of the 
bill of rights, of W'hich the owner can not be deprived without just 
compensation, though taken for, or subject to a public use: Mansfield 
V. Balliett, 65 O. S. 451. 

An easement of access from the street to an abutting lot is prop¬ 
erty: Schimmelmann v. Railway, 83 O. S. 356; McNulta v. Ralston, 5 
O. C. C. 330, 3 O. C. D. 163. 

The fact that an institution, founded by private donation, receives 
money derived from a levy made by the board of education, does not 
take the school out of the class known as private schools nor is the 
levy of taxes as an aid in the support of such a school unconstitutional: 
State, ex rel., v. Toledo, 3 O. C. C. (N.S.) 468, 13 O. C. D. 327. 

The right of the owner of land to lateral support is not a mere 

easement, but is a property right; and if the effect of a statutory 

provision is to abrogate the common law rule with reference to exist¬ 
ing rights, such provision is unconstitutional and void, as being in 

contravention of Art. I, § 19, and Art. II, § 8, of the constitution: 

Belden v. Franklin. 8 O. C. C. (N.S.) 159, 18 O. C. D. *373. 

An abutting property owner has a right and interest in a public 
street, in the nature of an easement, appurtenant to his lot, which 
is as much his private property as the lot itself. And when the city 
grants to a steam railroad company the right of way for its tracks 
in such street the abutting landowner has a right to have compensa¬ 
tion and damages assessed and determined by a jury in condemnation 
proceedings: Bending Co. v. Railway, 2 O. N. P. 317, 3 O. D. (N.P.) 
430. 

Riparian owners have the right of access to and from navigable 
rivers and can not be deprived thereof without due compensation: 
Gawn V. Wilson, 7 O. N. P. 33. 9 O. D. (N.P.) 683. 

The right of a riparian owner to construct and maintain a milldam 
is a property right of which he can not be deprived without com¬ 
pensation and G. C. § 6773 is therefore unconstitutional: Kiser v. Com¬ 
missioners, 85 O. S. 129. 

Where, under the charter of a turnpike, damages are assessed for 
injuries done to the land over which the road passes, the owner of 
the land can not afterwards sue one employed to make the road, for 
cutting the timber within the lines of the road into cordwood and 
selling it: Prather v. Ellison, 10 O. 396. 

D. When title passes. Where lands are appropriated, the title does 
not pass until “a compensation therefor shall first be made in money, 
or first secured by a deposit of money’ : Bothe v. Railway, 37 O, S. 
147. 

In proceedings by a corporation, to appropriate private property, 
there must be a judgment confirming the verdict of the jury before 


Art.I, § 19. 





160 


Art.1, § 19. CONSTITUTION OF THE STATE OP OHIO OP 1851. 


the corporation is entitled, by a deposit of the amount of such verdict, 
to possession of the property appropriated: Wagner v. Railway, 38 
O. S. 32. 

e:. Estoppel. While estoppel in its strict sense should be regarded 
as applying to questions of fact rather than law, it has been held that 
facts which would estop the property owner from attacking the valid¬ 
ity of an assessment on other grounds would estop him from attacking 
it on the ground that the law under which the assessment was levied 
is unconstitutional: Wright v. Thomas, 26 O. S. 346; State, ex rel., v. 
Mitchell, 31 O. S. 592; Tone v. Columbus, 39 O. S. 281; Lewis v. Symmes, 
61 O. S. 471; Mt. Vernon v. State, ex rel., 71 O. S. 428; Thornton v. 
Cincinnati, 16 O. C. D. 33; Shepard v. Barron, 194 U. S. 553, 14 O. F. D. 
417, 3 O. L. R. 327. 

A party may waive his constitutional right to have assessments 
limited to the actual benefits conferred; and he may bind himself by 
signing a petition to that effect to pay the assessment, irrespective of 
the number of property owners who sign the petition and independent 
of the amount of benefits conferred: Thornton v. Cincinnati, 16 O. 
C. D. 33. 

The fact that a property owner has signed an improvement peti¬ 
tion does not estop him from claiming that the assessment is in excess 
of the benefits conferred, unless it appears from the terms of the peti¬ 
tion that he agreed to pay his proportionate share thereof, irrespective 
of the amount of benefits: Birdseye v. Clyde, 61 O. S. 27. 

A property owner who petitions for an improvement and who 
acquiesces in what is done under his petition or in the construction of 
the improvement, may estop himself as to what has already taken 
place, or as to the natural acquiescence of the acts which have already 
occurred, but he is not estopped to attack an assessment for violations 
of the law which occur thereafter, and which do not necessarily follow 
the granting of the petition: Birdseye v. Clyde, 61 O. S. 27. 

A property owner who signs a petition for an improvement is 
estopped from attacking the constitutionality of the law under which 
such improvement and the assessment therefor are had, even though 
when such petition was signed laws of that sort had been adjudged 
by the supreme court to be valid and subsequently by a change of 
judicial opinion such laws were adjudged to be invalid: Murphy v. 
Sims, 7 O. C. C. (N.S.) 193, 17 O. C. D. 825 [affirming Murphy v. Sims, 
15 O. D. (N.P.) 295, and affirmed, without report, Sims v. Murphy, 
76 O. S. 626]. 

A property owner who petitioned for an improvement, took an 
active part in catising such improvement to be constructed, knew of 
what was being done toward the construction of such improvement 
and acquiesced therein, who signed a paper wherein for value he 
withdrew all objections to the improvement and the assessment of his 
real property, and who signed a statement that the work had been 
done properly and that there was no defense to the bonds, which 
statement was signed in order to enable the municipal corporation to 
issue its bonds, is estopped from denying the validity of such assess¬ 
ments: Shepard v. Barron, 194 U. S. 553, 14 O. F. D. 417, 3 O. L. R. 327. 

One who has petitioned for an improvement and has otherwise 
taken steps in promoting it, is estopped to deny the power of the 
municipal corporation and to act in the manner called for by such 
petition: Tone v. Columbus, 39 O. S. 281. 

A property owner who made no objection at - the time of the 
apportionment by the engineer, under a former statute, had acquiesced 
therein, is bound thereby and can not attack its validity: Bloch v. 
Godfrey, 5 O. C. C. (N.S.) 318, 16 O. C. D. 781. 

The mere fact that an abutting property owner petitioned for a 
sewer improvement and stood by without objection or protest and saw 
it built, does not estop him from thereafter contesting the validity of 
the assessment against his property to pay the costs thereof, on the 
ground that his property is not specially benefited thereby: Hildebrand 
V. Toledo, 6 O. C. C. (N.S.) 450, 17 O. C. D. 427. 

Signing an improvement petition does not estop the property 
owner who so signs it from claiming the benefit of a subsequent con¬ 
struction given by the supreme court of the assessment statute in 
favor of the property owner: Locke v. Cincinnati, 7 O. N. P 318 
2 O. D. (N.P.) 549. 

Active participation in causing the improvement to be made will 
estop the party engaged therein from denying the validity of the 
assessment, but to create an estoppel from silence merely, it must be 
shown that the owner had knowledge: 1, that the improvement was 
being made; 2, that it was intended to assess the cost thereof, or some 
part of it, upon his property; 3, that the infirmity or defect in the 
proceedings existed which he is to be estopped from asserting; and 4, 
it must appear that some special benefit accrued to his property frorri 
such improvement which it is inequitable, under the circumstances, he 
should enjoy without compensation: Tone v. Columbus, 39 O. S. 281. 



161 


CONSTITUTION OF THE STATE OP OHIO OP 1851. 


Under the act of April 5, 1866, where landowners, whose lands 
lying within two miles of the improvement have been reported as 
benefited, and assessed to pay the expense of the same, suffer the pro¬ 
ceeding and work to go on, with knowledge of the facts, until the 
improvement was substantially finished, they are estopped in equity 
from enjoining the collection of the assessments so made to pay for 
the completed improvement: Quinlan v. Myers, 29 O. S. 500. 

The owner is not estopped by having acquiesced in the construc¬ 
tion of the improvement, nor by petitioning therefor and thereby 
consenting to the raising of a certain proportion of its cost by assess¬ 
ment on all abutting property. By such acts he binds his property for 
the payment of its proper share of a legal assessment for the cost of 
the improvement, but no further: Birdseye v. Clyde, 61 O. S. 27. 

In some cases the mere silence of the property owner has been 
held not to estop him from attacking the validity of the assessment, 
if he has been under no special obligation to object, and he has done 
nothing to mislead the municipal corporation except by his silence: 
Wright V. Thomas, 26 O. S. 346; Columbus v. Agler, 44 O. S. 485; Bewls 
V. Symmes, 61 O. S. 471; Andrews v. Settles, 16 O. C. C. 638, 9 O. C. D. 
191. 

Whether payments of some installments of an assessment estops 
the property owner from attacking the validity of the remainder of 
such installments is a question upon which there is some conflict of 
authority: Metcalf v. Carter, 19 O. C. C. 196, 10 O. C. D. 269; Yost v. 
Bailway, 2 O. C. C. (N.S.) 519, 14 O. C. D. 169. 

When an assessment for a street improvement, whether payable 
ill installments or not, is larger than alloAved by law, and sufficient 
has been paid, though voluntarily, to equal or exceed the amount 
which could be lawfully assessed, the collection of the remainder of 
such assessment may be enjoined. In such case the action is not to 
recover payments already made, but to prevent the collection of unpaid 
illegal installments: Cincinnati v. James, 55 O. S. 180. 

Estoppel does not apply, especially if the property owner has 
protested that the work was not done in due performance of the con¬ 
tract: Hartzell v. Alliance, 39 Bull. 232 (supreme court, no opinion). 

While it has been held that an abutting property owner whose 
property has been assessed for a street improvement in excess of the 
amount authorized by law, who voluntarily pays the first installment 
before the contract for said improvement is let, who continues to pay 
all installments as they fall due while he watches in silence the letting 
of the contract and completion of the work, and who accepts all the 
benefits flowing therefrom is estopped from enjoining the collection of 
the excess installments: Monroe v. Cleveland, 9 O. C. C. (N.S.) 523, 
19 O. C. D. 633 [reversed, without report, Monroe v. Cleveland, 78 O. S. 
441]. (The fact that the supreme court reversed the circuit court 
shows that apparently the property owner was not estopped in this 
case.) 

If the compensation is made to a property owner for the use of 
that part of his land which was taken for an improvement, the fact 
that he accepts such compensation does not estop him from claiming 
that the statute under which the assessment has been levied is un¬ 
constitutional: Lewis V. Taylor, 18 O. C. C. 443, 10 O. C. D. 205. 

Acts which operate as an estoppel a§-ainst a grantor will operate 
as an estoppel against the grantee: Columbus v. Slyh, 44 O. S. 484. 

The fact that the grantee buys without actual knowledge of the 
assessment, or of the facts which amount to an estoppel, does not 
prevent him from being bound by an estoppel which would have been 
operative against his grantor: Danks v. Phares, 6 Dec. Rep. 1023, 9 Am. 
L. Rec. 554. 

Estoppel against a property owner does not operate as an estoppel 
against his mortgagee: Donohue v. Brotherton, 7 O. N, P. 367, 10 O. D. 
(N.P.) 47. 

The acts of an agent in excess of his authority do not amount to 
an estoppel of his principle: Andrew v. Auditor, 5 O. N. P. 123, 5 O. D. 
(N.P.) 242. 

A grantee, who as part of the consideration assumes and agrees 
to pay specific assessments described in such deed, is estopped to deny 
their validity, and if he agrees to pay a certain amount thereon he is 
estopped to deny that such amount is due: Lewis v. Taylor, 18 O. C. C. 
443, 10 O. C. D. 205 [affirmed, on other grounds, Lewis v. Symmes, 61 
O S 471]; Waldschmidt v. Bowland, 6 O. C. C. (N.S.) 99, 17 O. C. D. 
782 [affirmed, Bowland v. Waldschmidt, 73 O. S. 350]; Herman v. Colum¬ 
bus, 3 O. N. P. (N.S.) 216, 15 O. D. (N.P.) 509; Caldwell v. Columbus, 
37 Bull. 270. 

If a grantee merely assumes and agrees to pay the assessments on 
the property and the assessments are not specifically described, nor 
is the amount thereof fixed, the grantee is bound merely to pay the 
valid assessments and estoppel does not arise; Walsh v. Sims, 65 O. S. 
211; Bell v. Norwood, 8 O. C. C. (N.S.) 435, 18 O. C. D. 809. 

[Vol. VII—6] 


Art.I, § 19. 




162 


Art.I, § 19. CONSTITUTION OF THE STATE OP OHIO OF 1851. 


Under an ordinance granting a street railway franchise containing 
a provision that if on said street a pavement has already been laid and 
an assessment therefor placed on the tax duplicate, that suid com¬ 
pany shall pay to the municipal corporation such proportion of the 
assessment for said improvement as the space occupied by its tracks 
and one foot on the outside of the outer rails thereof bears to the 
entire width of the improved roadway, it has been held that the rail¬ 
way company is bound by its contract to pay said proportion of the 
assessments made and levied upon the feet fron^' of the abutting prop¬ 
erty, and can not defend upon any of the grounds that would have 
been available to abutting lot owners or to the company if not bound 
by such contract obligations: Railway v. Columbus, 3 O. N. P. (N.S.) 
438, 16 O. D. (N.P.) 102. 

If a property owner has undertaken to dedicate a street, his 
grantee is estopped from attacking an assessment for the improvement 
of such street on the ground that the municipal corporation had not 
acquired title thereto: Neff v. Bates, 25 O. S. 169. 

Where a corporation invokes the aid of the courts to acquire 
private property by condemnation proceedings and to avail itself of 
the special provisions of G. C. §§ 11038 to 11091, it is held such company 
is estopped to question the validity of the parts of the law which im¬ 
poses burdens upon it: Wiler v. Gas & Fuel Co., 6 O. C. C. (N.S.) 206, 
17 O. C. D. 257 [reversing Gas Co. v. Wiler, 1 O. N. P. (N.S.) 277, 14 
O. D. (N.P.) 164, and affirmed, without report, in Gas Co. v. Wiler, 
72 O. S. 628]. 

VI. COMPENSATION. 

A. Nature and amount. Compensation paid to a landowner for 
lands taken by appropriation proceedings to open a street, can not be 
assessed back upon the lands of the owner remaining after such taking. 
Neither can the costs and expenses incurred in such proceedings be so 
assessed: Railway v. Cincinnati, 62 O. S. 465 [overruling Cleveland v. 
Wick, 18 O. S. 303]. 

The limitation of § 19, of Art. I, of the constitution, on § 6, of 

Art. XIII, as to assessments, goes to the full extent of prohibiting 
the raising of money directly or indirectly by assessment to pay com¬ 
pensation, damages or costs for lands appropriated by the public for 

public use: Dayton v. Bauman, 66 O. S. 379 [affirming and following 

Railway v. Cincinnati, 62 O. S. 465]. 

The limitation of § 19, of Art. I, of the constitution, on § 6, of 

Art. XIII, as to assessments, does not affect or prohibit the raising of 
money by assessment to pay for surface improvement of streets, 
sewers, etc., so long as the assessment does not exceed the special 
benefits conferred: Dayton v. Bauman, 66 O. S. 379 [affirming and 
following Walsh v. Barron, 61 O. S. 15]. 

Where the right to compensation for land appropriated for side¬ 
walk purposes has once vested, but payment therefor is long delayed, 
the claim therefor will be treated as personal in the original owner, 
and not as having passed with the lots, subsequently conveyed after 
the building of the sidewalk by deeds in which no reference was made 
to such claim: Hyde Park v. Dyer, 7 O. N. P. (N.S.) 244. 

The interest of an abutting property owner in a street can not be 
taken away without compensation: Trust Co. v. Cleveland, 1 O. N. P. 
(N.S.) 493, 14 O. D. (N.P.) 33; Callen v. Light Co., 66 O. S. 166; Schim- 
melmann v. Railway, 83 O. S. 356. 

In condemnation proceedings brought by a traction company seek¬ 
ing to appropriate a right of way through a farm, the owner must 
be paid for the land taken at its fair market value at the time it is 
taken, and testimony tending to show probable benefit to the farm 
or as to the price at which the farm may have been offered for sale 
is incompetent: Traction Co. v. Dempsey, 9 O. N. P. (N.S.) 65. 

The measure of compensation in case of a taking by eminent 
domain is the full and fair market value of the property, not what 
it would bring at a forced sale, but what it would fairly bring if the 
owners themselves offered it for sale: United States v. In-Lots, Fed. 
Cases, 15441a, 4 O. F. D. 268. 

In a proceeding to appropriate private property for street pur¬ 
pose, the value of the property is to be taken at the time of the trial, 
and not at the date of the condemnation ordinance: Stribley v Cin¬ 
cinnati, 9 O. C. C. 122, 6 O. C. D. 54. 

B. In money. In case of the assessment of damages for laying 
out a road over the lands of any person, the damages or compensation 
for the land necessary to be taken must be paid or tendered in money 
or secured to be paid to the acceptance of the owner, before the 
opening of the road can be ordered: Ferris v. Bramble, 5 O. S. 109. 

General Code §§ 6461 to 6467 and 2460 taken together provide for 
the payment of money as compensation for taking private lands for 
ditch purposes, within the meaning of the constitution: Zimmerman 
V. Canfield, 42 O. S. 463. 



163 


CONSTITUTION OF THE STATE OP OHIO OP 1851 


An assessment of damages in the “sum of one hundred and fifty 
dollars, with a wagon way and stop for cattle,” as the damages sus¬ 
tained by the owner of land taken for the construction of a railroad, 
is not in conformity with this provision: Railroad v. Holler, 7 O. S. 220. 

It is error for court to order the proceedings before the commis¬ 
sioners for hearing upon any claim for compensation and damages, and 
leave the county commissioners at liberty to construct a ditch across 
private land, regardless whether the owner’s compensation is first 
provided for, as required by the bill of rights: Zimmerman v. Can- 
field, 42 O. S. 463. 

A fair market value of the property at the time it is taken must 
be awarded to the owner without any deduction for benefits conferred 
by the proposed improvement (see Art. VII, this section): Giesy v. 
Railway, 4 O. S. 309. 

C. AVhen payable. This section does not require compensation to 
be paid to the owner in advance on account of a public road which 
is open to the public without charge: Fogarty v. Cincinnati, 7 O. N. 
r. 100, 9 O. D. (N.P.) 753. 

Compensation need not to be made in advance when a toll road 
is taken by a city and made a free road, when the city has extended 
its boundaries so as to include a tollgate: Turnpike Co. v. Traction 
Co., 15 O. D. (N.P.) 118, 1 Hosea, 274 [reversed, without report. Turn¬ 
pike Co. V. Traction Co., 71 O. S. 530]. 

In cases falling within the protection of Art. I, § 19, of the consti¬ 
tution, which do not require as a condition precedent the payment or 
securement of compensation for property sought to be taken by the 
public, equity can afford adequate relief by requiring the defendant to 
give bond and it will not grant an injunction: Turnpike Co. v. Com¬ 
missioners, 5 O. N. P. 423, 7 O. D. (N.P.) 509. 

A railroad company can not under permission granted by the city 
council take possession of, for the use of its road, additional portions 
of a street without first having obtained the consent of the abutting 
property owners, or having compensated them: Root v. Railroad, 7 
O. N. P. 337, 5 O. D. (N.P.) 315. 

It was said that in case of changing the grade of a public street 
the property owner must be compensated before the work of changing 
the grade was begun: Ryan v. Cincinnati, 1 O. C. C. 558, 1 O. C .D. 311 
[affirmed, without report, Cincinnati v. Ryan, 24 Bull. 371]. 

The construction of public roads is a purpose, which under this 
section is placed alongside of war, as a case in which it is not neces¬ 
sary to make compensation in advance: Hixson v. Burson, 54 O. S. 470. 

D. Jury. 

1. Under constitution of 1802. Under the constitution of 1802 it 
was not necessary that the amount of compensation to be paid for 
property taken by eminent domain, be determined by a jury; and 
statutes which provided that such compensations should be assessed 
by three commissioners were held to be valid: Willyard v, Plamilton, 
7 O. (pt. 2) 111; Work v. State, 2 O. S. 296; Kramer v. Railroad, 5 
O. S. 140. 

2. Under constitution of 1851. By his section of the constitu¬ 
tion a complete judicial proceeding is contemplated, the jury to be 
in the jury box to pass on questions of fact, and the judge on the 
bench to decide questions of law: State, ex rel., v. Waite, 2 O. C. C. 
(N.S.) 49, 15 O. C. D. 216. 

A statute which provides for having the amount of compensation 
determined by commissioners or viewers in the first instance is con¬ 
stitutional if it secures a jury upon appeal: Lamb v. Lane, 4 O. S. 167; 
In re Wells County Road, 7 O. S. 16; Reckner v. Warner, 22 O. S. 275. 

A statute which authorizes a cemetery association to appropriate 
realty for an entrance, and which by an erroneous reference to a 
title and chapter of the Revised Statutes (referring by mistake to 
chapter 6 instead of to chapter 7) does not secure trial by jury, is 
unconstitutional: King v. Cemetery Association, 67 O. S. 240. 

General Code § 6476, providing in ditch appeals, that upon the 
question “whether said ditch will be conducive to the public health, 
convenience or welfare,” and “whether the route thereof is prac¬ 
ticable,” it shall be necessary for only eight jurors to agree to return 
a verdict, is not in conflict with § 5 or § 19, of Art. I: Emig v. Com¬ 
missioners, 5 O. N. P. 471, 5 O. D. (N.P.) 459. 

General Code §§ 6494 and 6495, providing for the improvement of 
ditches in villages, is not unconstitutional because wanting in “due 
process” in not providing for a jury to assess compensation, for which 
provision is made in other sections of the same chapter; or in not 
limiting the power of taxation and assessment, inasmuch as the con¬ 
stitutional limitation applies to cities and villages and not to counties: 
McCaslin v. Perrysburg, 6 O. N. P. (N.S.) 48, 18 O. D. (N.P.) 196 
[affirmed, McCaslin v. Perrysburg, 10 O. C. C. (N.S.) 325, 20 O. C. D. 
103]. 


Art.I, § 19. 




164 


Art.I, § 19. CONSTITUTION OP THE STATE OP OHIO OP 1851. 


One whose property is appropriated for a county road is entitled 
to have the amount of his compensation assessed by a jury: In re 
Road, 7 O. S. 16. 

Whether the provision of the constitution requiring' a jury applied 
to cases pending when the constitution was adopted was a question, 
but not decided in In re Road, 7 O. S. 16. 

The term “jury” in this section means twelve men sworn to de¬ 
termine the facts in a judicial proceeding, whose verdict to be valid 
must be unanimous: Lamb v. Lane, 4 O. S. 167; Work v. State, 2 O. S. 
297; Shaver v. Starrett, 4 O. S. 494. 

VII. NO DEDUCTION FOR BENEFITS. 

Whether special benefits, or such as accrue directly and solely to 
the owners of the lands appropriated, may be taken into consideration 
and allowed for—quaere: Railway v. Collett, 6 O. S. 182. 

That benefits could be deducted from the value of property ap¬ 
propriated under the constitution of 1802, see Kramer v. Railway, 5 O. 
S. 140. 

The provisions of this section and of Art. XIII, § 5—the one require- 
ing compensation to be made without deduction for benefits, when 
property is appropriated to a public use, and the other providing for 
compensation irrespective of benefits, where it is taken by a corpora¬ 
tion for a right or way—are, in legal effect, identical. When taken 
under either s*ection, its fair market value in cash, at the time it is 

taken, must be paid to the owner; and the jury, in assessing the 

amount, have no right to consider or make any use of the fact that it 
has been increased in value by the proposal or construction of the im¬ 
provement: Giesy v. Railroad, 4 O. S. 309. 

“Can the damages to the residue of the land through which the 
appropriation is made, be reduced by deducting therefrom, or setting 
off against them, the resulting benefits of the railroad to such residue 
of land? 

“The provisions of the constitution of this state on this subject, 
are somewhat different from the provisions in the constitutions of 
some of the other states. ‘Full compensation’ is required to be made 
to the owner in money for the appropriation of his property, as a 

condition precedent. To be a full compensation it must be a re¬ 

muneration or recompense for that detriment or loss to the owner in 
the value of his property arising from the taking of his property in 
connection with the use for which it is taken. Where a piece or 
strip of land is taken and severed by the appropriation from its con¬ 
nection with other land of the owner, some elements of compensation 

necessarily enter into the computation besides the abstract value of 
the number of feet or acres of ground actually taken. These elements 
of compensation may be comprehended in the following: 

“1. The abstract value of the quantity of ground taken. 

“2. The value arising from the relative situation of the land, 

taken in connection wdth the residue of the owner’s land from which 
it is severed; and 

“3. The effect upon the value of the residue of the owner’s land 
arising from the uses for which the appropriation is made. These 
grounds of compensation will give the landowner a recompense for 
the loss in the value of his property caused by the appropriation, for 
the special purposes or use for which it is authorized. Thus far, and 
thus far only, is the loss in the value of the residue of the land of 
the owner to be taken into account in making up the amount of the 
compensation to be paid”: Railway v. Ball, 5 O. S. 568. 

Under this provision it was held at first that if property was ap¬ 
propriated for opening a street, the cost thereof could be assessed 
upon the remainder of the tract from which such part had been ap¬ 
propriated: Cleveland v. Wick, 18 O. S. 303. 

This view was followed in many subsequent cases: Schroder v. 
Overman, 61 O. S. 1; Cincinnati v. Batsche, 52 O. S. 324; Caldwell v. 
Carthage, 49 O. S. 334; Krumberg v. Cincinnati, 29 O. S. 69; Henkle 
V. Cincinnati, 37 Bull. 394 (editorial). 

The supreme court of the United States, however, held that such 
assessment was invalid as taking propertv without due process of law: 
Norwood V. Baker, 172 U. S. 269, 12 O. F. D. 228. 

The Ohio courts have followed the decision of the supreme court 
of the United States and now hold such assessments invalid: Railway 
V. Cincinnati, 62 O. S. 465; Dayton v. Bauman, 66 O. S. 379; Rhodes v. 
Toledo, 6 O. C. C. 9, 3 O. C. D. 325 [affirmed, without report, Toledo 
V. Rhodes, 51 O. S. 562]; Freeman v. Hunter, 7 O. C. C. 117, 3 O. C. D. 
689 [affirmed, without report. Hunter v. Freeman, 51 O. S. 574]. 

\III. EFFECT OF CONSTITUTIONAL PROVISION ON SPECIFIC 
STATUTES. 

A. Notice. Notice by publication in the making of a street im¬ 
provement instead of personal notice to the property owner, does not 



165 

CONSTITUTION OP TUB STATE OP OHIO OP 1851. 


contravene this section: Emery v. Cincinnati, 4 O. N. P. 220, 6 O. D. 
(N.P.) 411. 

A statute providing- for a preliminary resolution and notice thereof 
sewer improvements to be paid for by taxation (R. S. 
§ 2304) was held to be valid in Savings Co. v. Cincinnati, 12 O. D. (N.P.) 

J 1 O. 

Personal notice to the owner of land sought to be taken for the 
construction of a ditch is not indispensable in order to its con¬ 
demnation and appropriation under said act, the notice by publication 
provided for therein being for that purpose sufRcient: Cupp v. Com¬ 
missioners, 19 O. S. 173. 

A landowner failing to make application for compensation or 
damages within the time limited by the act, will be deemed and held 
to have waived his right to the same, although he had no actual 
notice of the proceeding; and the provision in said act to that effect 
is not in conflict with § 19, Art. I, of the state constitution: Cupp v. 
Commissioners, 19 O. S. 173. 

It is necessary to the validity of an assessment on real estate, 
other than general taxes, that somewhere along the line of the pro¬ 
ceedings, notice be given to the owner, and an opportunity afforded 
him to be heard in opposition or defense. 

General Code §§ 8909, 8910, 8911 and 8912 are in conflict with 
§§ 16 and 19, of Art. I, of the constitution, and are void, for the 
reason that they attempt to authorize the taking of private property 
for private purposes, and without due course of law: Railway v. 
Keith, 67 O. S. 279 [reversing Railway v. Keith, 21 O. C. C. 669, 12 
O. C. D. 208]. 

B. Taxes and assessments. Section 19, of Art. I, of the constitu¬ 
tion, is a limitation upon § 6, of Art. XIII, as to the power of assess¬ 
ments: Railway v. Cincinnati, 62 O. S. 465. 

Legislation authorizing cities and villages to levy special assess¬ 
ments, for the purpose of improving streets, upon real estate peculiarly 
and specially benefited, and in proportion to such benefit, is not repug¬ 
nant to any provision of the constitution of 1802: Hill v. Higdon, 
5 O. S. 243. 

The “one mile assessment pike” laws (G. C. §§ 7232 to 7309) are 
valid: Grove v. Commissioners, 8 O. C. C. 166, 4 O. C. D. 382 [affirmed, 
without report. Grove v. McDonald, 52. O. S. 664]. 

C. Corporation taxes. A franchise tax upon corporations (see 
G. C. § 5522, et seq.) is not rendered invalid by this provision: State v. 
Bridge Co., 6 O. N. P. (N.S.) 55, 18 O. D. (N.P.) 273; see, also. Southern 
Gum Co. V. Laylin, 66 O. S. 578. 

D. Tax sales. General Code § 8522, in so far as it undertakes to 
establish possession in the purchaser at a tax sale or those claiming 
under him prior to its enactment, is in conflict with this section: 
Magruder v. Esmay, 35 O. S. 221. 

E. Public improv'ements. The act of January 27, 1853 (S. & C. 

1289), entitled, “an act for opening and regulating roads and high¬ 
ways,” as amended, April 8, 1856 (S. & C. 1301), was not repugnant to 
the provisions of the constitution relating to trial by jury as contained 
in §§ 5 and 19, of Art. I. The right of appeal therein provided for, to 
the probate court, where a constitutional jury may be had, validates 
tlie statute; and the provision therein for an appeal bond, wdth sure¬ 
ties, conditioned for the payment of costs adjudged against the ap¬ 
pellant, does not contravene the right of trial by jury, as guaranteed 
by the constitution: Reckner v. Warner, 22 O. S. 275. 

The proviso in § 6, of the act of January 27, 1853 (S. & C. 1291), 
declares a rule of evidence whereby a waiver, on the part of the 
landowner, of his right to compensation, may be established, and does 
not conflict with the constitution (§ 19, Art. I), relating to the in¬ 
violability of private property. The rule contained in this proviso 
can not be regarded either as a statute of limitation, whereby a right 
secured by the constitution is barred immediately upon the accruing 
thereof, or as a statute declaring the forfeiture of private property: 
Reckner v. Warner, 22 O. S. 275. 

An act “to authorize the making of roads and bridges (drains) in 
certain cases,” passed February 8, 1847, and an amendatory act, 

passed March 8, 1850 (S. & C. 526, 527), were declared unconstitutional 
in Wilkinson v. Culp, 40 O. S. 86. 

The act of April 30, 1869, “authorizing the building and repairing 
of levees to protect lands from overflow,” is in contravention of § 19, 
of the bill of rights, inasmuch as under its provisions, private prop¬ 
erty may be appropriated without reference to the public welfare, 
and also, inasmuch as no provision is made therein for the assess¬ 
ment of compensation by a jury. The body of men provided for in 
§§ 6 and 7, of the act, is not a jury within the meaning of the con¬ 
stitution, because they are not authorized to hear testimony, nor are 


Art.I, § 19. 




166 


Artl, §19. CONSTITUTION OF TUB STATE OP OHIO OP 1851. 


they subject to judicial direction in the hearing of the case, nor in 
the making up of their finding or report: Smith v. Railway, 25 O. S. 91. 

An appropriation of land for a ditch, by county commissioners, 
under § 22 (70 v. 82; repealed, 94 v. 373), was constitutional. There 
was under said section and laws, a mode of asse.ssing compensation 
for land taken under said act, in that it provided for an appeal from 
the county commissioners to the probate court, in which court a jury 
might be had under the rules of said court: Chesbrough v. Commis¬ 
sioners, 37 O. S. 508. 

The act of May 1, 1862, entitled, “an act to provide for locating, 
establishing and constructing ditches, drains and watercourses in 
townships,” is not repugnant to the constitution of the state in so 
far as its provisions relate to the taking of private property for 
township ditches, when the public health, convenience, or welfare 
demands it; nor in so far as its provisions relate to the mode of 
compensating the owner for property taken for public use; nor in 
so far as its provisions relate to the assessment of the costs and ex¬ 
penses of constructing the ditch upon lands benefited thereby: Ses¬ 
sions V. Crunkilton, 20 O. S. 349. 

The act of May 1, 1854, “authorizing the trustees of townships 
to establish watercourses,” etc., and the amendatory act of April 14, 
1857, are in contravention of § 19, of the bill of rights, inasmuch as 
they authorize an appropriation of private property without reference 
to the public welfare: Reeves v. Treasurer, 8 O. S. 333. 

The statutory provisions on the subject of cleaning and repairing 
watercourses are not rendered invalid by this section: Taylor v. 
Crawford, 72 O. S. 560 [reversing Crawford v. Taylor, 6 O. C. C. (N.S.) 
278, 17 O. C. D. 245], 

General Code §§ 6494 and 6495, providing for improvement of ditches 
in villages is not unconstitutional as wanting in “due process of law,” 
in not providing for a jury to assess compensation: McCaslin v. 
Perrysburg, 6 O. N. P. (N.S.) 48, sub nomine, McCastin v. Perrysburg, 
18 O. D. (N.P.) 196 [affirmed, McCaslin v. Perrysburg, 10 O. C. C. 325, 
20 O. C. D. 103]. 

General Code § 6773 authorizes the taking of private property in the 
improvement of, and removal of, an obstruction .from a living stream 
for the public benefit without compensation to the owner, in violation 
of Art. I, § 19, of the constitution, and is, therefore, null and void: 
Kiser v. Commissioners, 85 O. S. 129. 

The act of January 31, 1871 (repealed, 99 v. 382 and 89 v. 351), of 
the Revised Statutes in so far as it required the owner of a dam 
constructed across a stream not navigable and who had enjoyed the 
adverse use of such dam for the period of twenty-one years, to con¬ 
struct and maintain at his own expense a chute or passageway over 
the same for fish, was unconstitutional. Whether the act was valid 
where the adverse use is less than twenty-one years, was not decided: 
Woolever v. Stewart, 36 O. S. 146. 

A statute which provided that inquiry into damages caused by 
public improvement should be made after the improvement was com¬ 
plete (see G. C. § 3824) was held to be valid: Toledo v. Preston, 50 
O. S. 361. 

There was no provision in the statutes whereby the owner of 
material taken by a supervisor for the repair of a public highway, 
under G. C. §§ 7137 to 7139 in its original form, could have his com¬ 
pensation assessed by a jury as required by § 19, of the bill of rights, 
and it is therefore invalid: Hendershot v. State, 44 O. S. 208. 

General Code §§ 7137 to 7139, authorizing road supervisors to secure 
gravel from unimproved land for road repairs, the compensation to be 
fixed by trustees, is invalid: Snyder v. McCollough, 6 0. N. P. (N.S.) 667, 
17 O. D. (N.P.) 140. 

Where by the terms of annexation of a village to a city it is 
stipulated that “all grades of streets heretofore established within and 
by the proper authorities of said village shall be respected, but the 
same may be altered with the consent of the property owners or on 
payment of damages that may be agreed upon or ascertained by law,” 
it was held that the only effect of such annexation agreement was to 
rdace the street grades established by the village authorities on the 
same footing with street grades established by the city authorities, 
and damages to improvements on abutting lots and the additional 
cost of street construction caused by such change of grade assessed 
by the foot front upon such lot in common with others on said street 
is not a violation of this section: Thale v. Cincinnati, 1 O. N. P. 427, 
3 O. D. (N.P.) 131. 

This section and the police power of the state justify the enactment 
of G. C. § 8874, et seq., providing for the elimination of grade cross¬ 
ings. and G. C. § 8885, fixing a time for judicial inquiry as to damages 
resulting therefrom: Quinby v. Cleveland, 16 O. F. D. 583. 





167 


CONSTITUTION OP THE STATE OP OHIO OP 1851. ' 


A former statute (B., § 3574-1; 90 v. 153) which authorized a ceme¬ 
tery association to appropriate -land, but which by mistake in its 
reference to the statutes, which were to control, did not secure a trial 
by jury upon the question of compensation, was held to be invalid 
in King v. Cemetery Association, 67 O. S. 240. 

For the present form of this statute, see G. C. §§ 10099, 10100. 

F. Qiin.si public. i)iiri)ose.s. Act of April 30, 1852 “to provide for 
compensation to owners of private property appropriated for the use 
of corporations,” was held to be constitutional: State, ex rel., v. Rail¬ 
road, 17 O. S. 103. 

General Code § 3399, et seq., and § 10128, et seq., which authorize the 
appropriation of private property for certain public utilities are not 
rendered invalid by this section: Light Company v. White, 5 O. N. P. 
^N.S.) 201, 52 Bull. 354 [affirmed, without report. White v. laght Co., 
77 O. S. 633]. 

A statute which provided that the damages caused by construc¬ 
tion of telephone or telegraph lines should be determined by appraisers 
appointed by county cornmissioners (R. S. § 3461-2), was held to be 
unconstitutional in Telephone Co. v. Cush, 14 O. D. (N.P.) 148. 

“It is the right and duty of judicial tribunals to determine 
whether a legislative act, drawn in question in a suit pending before 
them, is opposed to the constitution, and if so found, to treat it as 
a nullity. In such case the presumption is always in favor of the 
validity of the law, and it is only where manifest assumption of au¬ 
thority, and a clear incompatibility between the constitution and the 
law appear, that the judicial power will refuse to execute it. It wms 
competent for the legislature under the constitution of 1802 to con¬ 
struct w'orks of internal improvement on behalf of the state, or to 
aid in their construction by subscribing to the capital stock of cor¬ 
porations created for that purpose, and to levy taxes to create the 
means, and, by an exercise of the same pow’^er, to authorize a county 
to subscribe to a work of that character running through or into such 
county, and to levy a tax to pay the subscription”: Railway v. Com¬ 
missioners, 1 O. S. 77. 

An act of the general assembly authorizing the trustees of a town¬ 
ship through w^hich a railroad was to be made, to subscribe on behalf 
of the township to the capital stock of the railroad company, was not 
in conflict with the constitution of 1802: Railroad v. Trustees, 1 O. S. 
105. 

See, however. Art. XII, § 6, of the constitution of 1851. 

An ordinance conferring the right to lay tracks within a city, 
can not give the powder to lay tracks outside of the municipality, 
otherwise it would violate the above section: Commissioners v. Light 
& Power Co., 9 O. C. C. 183, 6 O. C. D. 290. 

The provisions contained in G. C. §§ 9108 and 9109 prior to the 
amendment of April 11, 1890 (78 O. L. 178), are constitutional. Whether 
those added by that amendment are constitutional is doubtful, but if 
unconstitutional, they are distinct and separable from those of the 
original section, and do not affect their validity; Railway v. Railway, 
50 O. S. 603. 

G. Rallway.s. General Code § 8908 requiring railroad companies to 
construct and keep open ditches of sufficient depth, width and grade to 
conduct to some proper outlet, the water which accumulates along 
the sides of such roadbed from the construction or operation of such 
road, is a valid statute in so far as the accumulation of water is 
injurious to the contiguous lands, or detrimental to the public, but 
invalid where such water is not injurious to such lands or the public. 

In so far as §§ 16 and 19, of Art. I, of the constitution, conflict 
with the common law, these sections must prevail over that law. 
And this is so, whether the conflict is as to the right or remedy: 
Railway v. Keith, 67 O. S. 279 [reversing Railway v. Keith, 21 O. 0. C. 
669, 12 O. C. D. 208]. 

General Code § 8970 imposes upon every railroad company operating 
railroad or part thereof in this state, an absolute liability for loss 
or damage by Are, originating on its land, caused by operating the 
road; and the fact that the Are originated on the land of the company 
is made prima facie evidence that it was caused by operating the 
road. In an action for such loss or damage, it is not necessary to 
fillege or prove negligence on the part of the company; nor is the 
absence of such negligence a defense. 

These provisions of the statutes are constitutional. They neither 
impair the obligation of contracts, nor deprive railroad companies 
of property without due process of law, nor deny them the equal pro¬ 
tection of the law, and they have uniform operation ^ throughout the 
state. W^hether § 3, of the act, which provides for taxing as part of 
the costs an attorney’s fee for the successful party on appeal, is con¬ 
stitutional-quaere. But if not, it is severable from the remaining 
provisions, and does not affect their validity: Railway v. Kreager, 
61 O. S. 312 [affirming Railway v. Falk, 16 O. C. C. 125, 8 O. C. D. 765]. 


Art.I, § 19. 



168 


Art.I, §19. CONSTITUTION OF THE STATE OP OHIO OP 1851. 


H. Gntniled estates. A statute which authorizes the sale of 
entailed estates (G. C. § 11925, et seq.) is valid as far as it applies 
to estates created after its enactment, and as to such estates it is not 
in violation of this section of the constitution: Nimmons v. Westfall, 
33 O. S. 213. 

Such provisions were unconstitutional as far as they applied to 
the estates in tail which were in existence when the statute was 
passed: Gilpin v. Williams, 25 O. S. 283; see, also. Reams v. Wolls, 
61 O. S. 131. 

I. Occupying: claimants. The occupying claimant act in the form 
in which it permitted the true ower of the property to decide whether 
he would retain the property and make compensation for the improve¬ 
ments, or whether he would surrender the property and receive com¬ 
pensation for the value of the property without the improvements, was 
held to be valid, but in the form in which it gave such option to the 
person who was found not to be the true owner of the property it 
was invalid: McCoy v. Grandy, 3 O. S. 463. 

J. Intoxicating liquor. It was held that the provision of the 
Scott law, passed April 17, 1883, amended (see G. C. § 6071), imposing an 
assessment on the business of trafficking in intoxicating liquors, and 
making the sam« a lien upon the premises where the business was car¬ 
ried on, would not be construed so as to operate upon real estate held 
by a tenant under a lease for a term executed before the passage of 
the statute: State, ex rel., v. Frame, 39 O. S. 399. 

The provision of the law imposing a tax on the business of selling 
intoxicating liquors (see G. C. § 6071) which makes the tax a lien on 
the property in which the business is carried on, is not in conflict with 
Art. I, § 19: Anderson v. Brewster, 44 O. S. 576; see, also. Pioneer Trust 
Co. V. Stich, 71 O. S. 459. 

General Code §§ 6193 to 6201, prohibiting the sale or giving away 
of intoxicants in houses of ill-fame and providing a penalty for such 
action, which shall be a lien upon the real estate, is valid: State v. 
Allen, 3 O. N. P. 201, 6 O. D. (N.P.) 43. 

The fact that local option statutes (see G. C. § 6108, et seq.) may in 
their operation destroy the value of saloons in districts in which the 
sale of liquor is forbidden; and may decrease the value of breweries 
in such districts, does not render such legislation invalid as a violation 
of this section: Scheu v. State, 83 O. S. 146 [citing and following 
Adler v. Whitbeck, 44 O. S. 539; Anderson v. Brewster, 44 O. S. 576; 
Gordon v. State, 46 O. S. 607]. 

K. Fish and game laws. Whether the requirements (repealed, 99 
V. 382) of the fish and game laws of Ohio as to licenses upon fishing 
nets are unconstitutional was queried but not decided in French v. 
Shirley, 7 O. N. P. 26, 9 O. D. (N.P.) 181. 

li. Pure food laws. The pure food laws which forbid the sale of 
articles except in so far as they conform to specified standards are 
valid: Weller v. State, 53 O. S. 77; Williams v. McNeal, 7 O. C. C. 280, 
4 O. C. D. 596. 

An ordinance regulating the sale of milk and cream, and providing 
for an examination of the places where produced and the product sold, 
and for the issuing of a permit to sell by the board of health, is not 
burdensome to the producer or inimical to the constitution: Walton v. 
Toledo, 3 O. C. C. (N.S.) 295, 13 O. C. D. 547 [affirmed, without report, 
Walton V. Toledo, 69 O. S. 548]. 

M. Billboards. A municipal ordinance prohibiting billboards was 
held unconstitutional: Cleveland v. Bryan, 8 O. N. P. 552, 11 O. D. (N.P.) 
473. 

N. Cemeteries. The establishment of a cemetery within a former 
prohibited distance of a dwelling house and without giving right of 
compensation for depreciation, is void (see G. C. § 3442): Norton v. 
Trustees, 8 O. C. C. 335, 4 O. C. D. 422 [affirmed, without report, Paine 
V. Norton, 54 O. S. 682]. 

O. Auimals. A statute which authorized certain officers to kill 
neglected or abandoned animals, which in the opinion of three reputable 
citizens were injured or diseased past recovery, or were useless by 
reason of age (R. S. § 3725a), was held to be unconstitutional in Brill 
V. Ohio Humane Society, 4 O. C. C. 358, 2 O. C. D. 594. 

A statute which provided that a humane society should dispose of 
all dogs upon which a license fee Avas unpaid, was held to be unconsti¬ 
tutional in Fagin v. Humane Society, 6 O. N. P. 357, 9 O. D. (N.P.) 341. 

A city ordinance for the sale of unlicensed dogs was held uncon¬ 
stitutional: Archer v. Baertschi, 8 O. C. C. 12, 4 O. C. D. 416.. 

1*. Dealers in seeoudliand articles. General Code §§ 6370 to 6374, 
which require junk dealers and dealers in secondhand articles of any 




169 

CONSTITUTION OF THE STATE OP OHIO OP 1851. Art.I 


kind, to put up a sign and keep a book containing a description of 
articles purchased and to retain such articles for at least thirty days 
before disposing of the same, etc., are a necessary and reasonable exer¬ 
cise of the police power and are, therefore, constitutional; Phillips v. 
State, 77 O. S. 214. 

Sections 4364-42, 4364-43, 4364-44 and 4364-45, Revised Statutes, 
making it a crime to have in possession, for use or sale, certain bottles 
or other vessels without the written consent of the owner, and pro¬ 
viding for search warrant to seize and restore such property to the 
owner, were invalid, being in conflict with §§ 1, 14 and 19, of Art. I, of 
the constitution of Ohio: State v. Schmuck, 77 O. S. 438. 

<1. Conditional sales. General Code § 8565, et seq., which regulates 
conditional sales of private property is valid: Weil v. State, 46 O. S. 450. 

R. Replevin. “The plaintiff’s affidavit in replevin of his property 
and right of possession, and the defendant’s possession and claim of 
right to the same property, make a case of disputed ownership to the 
chattel replevied. Our statute directs its seizure and delivery over to 
the plaintiff, if he will give bond with surety to pay to the defendant 
all damages; and if he do so, then the disputed right of the defendant 
to the chattel becomes a mere right in action to recover its value from 
the plaintiff and his sureties; but if the plaintiff fails to give bond, 
then the property is returned to the defendant, and the plaintiff’s right 
to the chattel is changed into a mere right to recover its value, in that 
action from the defendant. And to this there is no constitutional 
objection”; Smith v. McGregor, 10 O. S. 461. 

S. 3Iol> violence. The act of the legislature of Ohio, entitled, “An 
act for the suppression of mob violence,” passed April 10, 1896 (G. C. 
§§ 6278 to 6289), is constitutional. 

The recovery authorized by said act is penal in its nature, and it 
is within the legislative power to provide therefor. Such legislation is 
not an exercise of judicial power; nor is it a violation of the right of 
trial by jury: Commissioners v. Church, 62 O. S. 318 [affirming Mitchell 
V. Commissioners, 10 O. C. D. 801, which reversed Mitchell v. Commis¬ 
sioners, 5 O. N. P. 158, 5 O. D. (N.P.) 262, and reversing Caldwell v. 
Commissioners, 15 O. C. C. 167, 8 O. C. D. 56, which affirmed Caldwell v. 
Commissioners, 4 O. N. P. 249, 6 O. D. (N.P.) 367]. 

T. Restriction upon contract. The act of April 16, 1900, 94 Ohio 
Laws, 357, entitled: “An act to provide for limiting the hours of daily 
service of laborers, workmen and mechanics, employed upon public work, 
or of work done for the state of Ohio, or any political subdivision 
thereof, providing for the insertion of certain stipulations in contracts 
of public vmrks; imposing penalties for violations of the provisions of 
this act and providing for the enforcement thereof,” is in conflict with 
§j 1 and 19, of Art. I, of the constitution of Ohio, because it violates 
and abridges the right of parties to contract as to the number of hours 
labor that shall constitute a day’s work, and invades and violates the 
right, both of liberty and property, in that it denies to municipalities 
and to contractors and subcontractors the right to agree with their 
employes upon the terms and conditions of their contracts. Said act 
is therefore unconstitutional and void: Cleveland v. Construction Co., 
67 O. S. 197. 

An ordinance of the city of Cleveland limiting the wages of common 
laborers and the number of hours they might be employed in any 
public work, which was to be let by contract in unconstitutional: State, 
ex rel., v. Norton, 5 O. N. P. 183, 7 O. D. (N.P.) 354. 

A statute which forbade an employer to attempt to prevent his 
employes from joining a labor organization (see G. C. § 12943) was held 
to be held unconstitutional in State v. Bateman. 7 O. N. P. 487, 10 O. 
D. (N.P.) 68. Apparently the same view was taken in State v. Brook- 
man, 72 O. S. 428. Such statute was held to be constitutional in In re 
Berger, 12 O. N. P. (N.S.) 401, and in Davis v. State, 30 Bull. 342.‘ 

The act, entitled, “An act to define trusts,” etc. (93 O. L. 143), in so 
far as it forbids independent corporations to enter into combinations to 
restrict competition in trade with a view to exacting from consumers 
higher prices than would prevail under the conditions of open competi¬ 
tion, is an exercise of legislative power not repugnant to any limitations 
prescribed by either the state or federal constitution: State, ex rel., v. 
Pipe Line Co., 61 O. S. 520. 

General Code, § 3673 can not be so construed as to authorize the 
council of a municipal corporation to impose a license fee upon mer¬ 
chants who do not sell upon the public streets or places, but only solicit 
orders and negotiate future sales at the residences of their customers: 
Tea Co. v. Tippecanoe, 85 O. S. 120. 

The act of May 31, 1911, relating to preservation of the health of 
females employed in manufacturing, mechanical, mercantile and other 
establishments, is not in derogation of the constitutional right of free¬ 
dom of contract, nor is the classification arbitrary or the exemption 





170 


Art.I, § 19a. 


Damage for 
wrongful death. 


Powers reserved 
to the people. 


CONSTITUTION OF THE STATE OF OHIO OF 1851. 


unreasonable which is therein established, but the act is justified on 
the ground of public health, morals and the general welfare, and is 
valid and enforcible: Ex parte Hawley, 12 O. N. P. (N.S.) 1 [affirmed, 
without report, on the grounds stated in the opinion of the common 
pleas court in Ex parte Hawley, 85 O. S. 494]. 

This section does not render invalid the statute which creates the 
state liability board of awards (G. C. §§ 1465-37, et seq.): State, ex rel., 
V. Creamer, 85 O. S. 349. 

This section does not render invalid G. C. § 666, which forbids a 
burial insurance company to contract for the services of a specific 
undertaker so as to prevent the family of the decedent from employing 
such undertaker as they may wish; Robbins v. Hennessy, 86 O. S. 181. 

U. Liability of public officers. A special act requiring the board 
of education to release the sureties on the bond of a county treasurer 
from liability for school funds of the board, is not in conflict with the 
constitution. The fact that judgment had been rendered against the 
sureties will make no difference: State, ex rel., v. Board of Education, 
38 O. S. 3. 

V. Rules of evidence. The proviso in § 6 of the act of January 27, 
1853 (S. & C. 1291), declares a rule of evidence whereby a waiver, on 
the part of the landowner, of his right to compensation may be 
established, and^'does not conflict with the constitution (Art. I, § 19) 
relating to the inviolability of private property. The rule contained 
in this proviso can not be regarded either as a statute of limitation 
w'hereby a right secured by the constitution is barred immediately 
upon the accruing thereof, or as a statute declaring the forfeiture of 
private property: Reckner v. Warner, 22 O. S. 275. 

Section 218-223, Bates’ Statutes, in so far as it attempts to make 
the findings, maps, plats and surveys prepared by the canal commis¬ 
sion competent or prima facie evidence of the truth of such findings, 
or the boundaries of such lands, or that the state has the ownership of 
such lands, or an interest therein, is unconstatutional and void, being 
in conflict with § 19, of the bill of rights, and § 28, of Art. II, of the 
constitution: State v. Tin & Japan Co., 66 O. S. 182. 

86 V. 270 (§ 218-223 Bates’ Statutes), was held to be unconstitutional 
as far as applicable to pre-existing cases of action: State v. Tin & 
Japan Co., 21 O. C. C. 218, 11 O. C. D. 587 [affirmed, without report. 
State V. Tin & Japan Co., 65 O. S. 605]. 

The provisions of G. C. § 8522, as to what shall constitute conclusive 
proof of possession, is an unconstitutional confiscation of property, and 
without the aid of this section the defendants claim of title by adverse 
possession fails: Coal Co. v. Railroad, 7 O. C. C, (N.S.) 554, 18 O. C. D. 
618. 

1 Debates, 164, 290-293; 2 Debates, 176-182, 220-240, 318, 634, 652, 
653, 663, 664, 806, 826, 827, 857, 870. 

Section 19a, The amount of damages recoverable by civil 
action in the courts for death caused by the wrongful act, neg¬ 
lect, or default of another, shall not be limited by law. (Adopted 
September 3 , 1912 .) 

Vote; “Yes,” 355,605; “No,” 195,216. 

Section 20. This enumeration of rights shall not be 
construed to impair or deny others retained by the people; and 
all powers, not herein delegated, remain with the. people. (See 
Const. 1802 , Art. VIII, § 28 .) 

See Const. 1802, Art. VIII, § 28. 

Cited: Cass v. Dillon, 2 O. S. 607; Mirick v. Gims, 79 O. S. 174; State 
V. Gardner, 2 O. N. P. 405, 4 O. D. (N.P.) 34; Columbus v. Bohl, 1 O. N. P. 
(N.S.) 469, 13 O. D. (N.P.) 569; Bank v. Knoop, 57 U. S. (16 How.) 369. 

Under this provision the rights and powers which are not conferred 
by this constitution remain vested in the people: Wells v. Lewis, 12 O. 
D. (N.P.) 170. 

This section does not restrict or limit the pow’^ers which are con¬ 
ferred by the remaining clauses of the constitution: State, ex rel., v. 
Covington, 29 O. S. 102. 

This section was said to be intended to prevent enlargement by 
construction or otherwise of the powers granted to the government by 
the remaining provisions of the constitution; Railway v. Commission¬ 
ers, 1 O. S. 77. 

General Code §§ 200, 219 and 12685, establishing a bureau of vital 
statistics and providing for prompt and permanent registration of all 
births and deaths occurring within the state of Ohio (99 v. 296) so 
far as tkey relate to a physician or midwife, are unconstitutional and 
void, because they were enacted by an unnecessary, unreasonable and 
arbitrary exercise of the police power: State v. Boone, 84 O. S. 346. 



Art.II, § 1. 


171 

CONSTITUTION OF THE STATE OP OHIO OF 1851 


this section of the constitution expressly excludes from the 
egislative department, the exercise of any power which is not dele- 
gatea to it in the constitution, the authority of a single branch of the 
legislature to act separately, must be found in express terms or by 
necessary implication in the constitution: State, ex rel., v. Guilbert, 75 

This section does not render invalid a statute which authorized the 
governor to appoint officers of boards for municipal corporations: 
State, ex rel., v. Smith, 44 O. S. 348. 

/, This section does not render invalid the “compulsory education law” 

O^C r ^ ‘ v. State, 5 

27 Bull 332] ^ ^affirmed, without report, Quigley v. State, 

This section does not render invalid a statute which provides for 
detaching farm lands from municipal corporations (see G. C § 3578)- 
Grover Hill v. McClure, 6 O. C. C. (N.S.) 197, 17 O. C. D. 376 [affirmed! 
without report, Grover Hill v. McClure, 72 O S 676] 

2 Debates, 231, 337, 464, 806, 827, 857, 870. 


ARTICLE 11. 


LEGISLATIVE, 

All of this article is devoted to the subject of legislative powers 
and duties. But it has respect to future legislative bodies and future 
legislation under this constitution, rather than to past, under the former 
constitution”: Allbyer v. State, 10 O. S. 588. 

A joint resolution of the general assembly is ineffectual to modify 
statute law either by way of ^.ppeal or amendment: State v. Kinney, 
56 O. S. 721. ^ 

A member has no right to solicit, ask, or invite any one to give him 
money, either for himself or other member, as a consideration of any 
official action by him: State v. Geyer, 3 O. N. P. 242, 5 O. D. (N.P.) 646. 


Section 1. The legislative power of the state shall be 
vested in a general assembly consisting of a senate and house 
of representatives but the people reserve to themselves the 
power to propose to the general assembly laws and amendments 
to the constitution, and to adopt or reject the same at the polls 
on a referendum vote as hereinafter provided. They also re¬ 
serve the power to adopt or reject any law, section of any law 
or any item in any law appropriating money passed by the gen¬ 
eral assembly, except as hereinafter provided, and independent of 
the general assembly to propose amendments to the constitution 
and to adopt or reject the same at the polls. The limitations ex¬ 
pressed in the constitution, on the power of the general assembly 
to enact laws, shall be deemed limitations on the power of the 
people to enact laws. (As amended September 3 , 1912 .) 

Vote: “Yes,” 312,592; “No,” 231,312. In effect October 1, 1912. 

Original § 7 read as follows: “Sec. 7. [In whom legislative power is 
vested] The legislative power of this state shall be vested in a general 
assembly, which shall consist of a senate, and a house of representa¬ 
tives. (See Const. 1802, Art. I, § 1.)” 


I. Applied, cited, construed, re¬ 
ferred to, etc. 

II. Scope and effect of grant of 
legislative power. 

III. Taxing pow'er. 

IV. Intoxicating liquors. 

V. Public corporations and 
officers. 


VI. Police power. 

VII. Judicial power. 

VIII. Vesting power in tlie general 
assembly. 

IX. Delegation of legislative 
power 

X. A alidity of luitiafive and 
Referendum provisions. 


I. APPLIED, CITED, CONSTRUED, REFERRED TO, ETC. 

Adler v. Whitbeck, 44 O. S. 539; Anderson v. Brewster, 44 O. S. 576; 

Marmet v. State, 45 O. S. 63; State, ex rel., v. Ferris, 53 O. S. 314; State 

V. Gardner, 54 O. S. 24; State, ex rel., v. Bode, 55 O. S. 224; State, ex rel., 

V. Bloch, 65 O. S. 370; State v. Guilbert, 70 O. S. 229; Lucas Co. v. State, 

75 O. S. 114; Weitzel v. Slavin, 13 O. C. C. 221, 7 O. C. D. 155; State, 
ex rel., v. Columbus, 9 O. C. C. 134, 6 O. C. D. 36 [affirmed, without 
report. Mills v. Board of Elections, 54 O. S. 631]; Mitchell’s Adminis¬ 
trator V. Commissioners, 5 O. N. P. 158, 5 O. D. (N.P.) 262; State, ex rel., 
V. Oviatt, 4 O. N. P. (N.S.) 481; Board of Education- v. Sawyer, 7 

O. N. P. (N.S.) 401, 19 O. D. (N.P.) 1; Columbus v. Heating and Lighting 
Co., 16 O. D. (N.P.) 311; State, ex rel., v. Commissioners, 17 O. D. (N.P.) 
451. 


In whom legis¬ 
lative power is 
vested. 

Initiative and 
Referendum. 





Art.II, § 1. 


172 

CONSTITUTION OF THE STATE OP OHIO OF 1851. 


II. SCOPE AND EFFECT OF GRANT OF LEGISLATIVE POWER. 

The same provision, in nearly the same words, is found in the former 
constitution. It will be observed that the provision is not, that the leg¬ 
islative power as conferred in the constitution shall be vested in the 
general assembly, but that the legislative power of this state shall be 
vested. That includes all legislative power which the object and pur¬ 
poses of the state government may require, and we must look to other 
provisions of the constitution to see how far, and to what extent, legis¬ 
lative direction is qualified or restricted. Hence the difference between 
the constitution of the United States and a state constitution such as 
ours. In the former we look to see if the power is expressly given; in 
the latter to see if it is denied or limited: Baker v. Cincinnati, 11 O, S. 
534. 

By the terms of our state constitution, “the legislative power of the 
state” is declared to be “vested in the general assembly.” This grant 
of power is general in its terms, not special; it embraces all such legis¬ 
lative power as the people of the state could, under the federal consti¬ 
tution confer—the whole “legislative power of the state.” The limita¬ 
tions upon the exercise of the power fhus broadly conferred, are special, 
and are to be found in other parts of the same instrument. The act in 
question is not an encroachment upon the powers or functions delegated 
to other departments of the government; that is to say, the nature of 
its subject-matter is such as to give its enactment a legislative char¬ 
acter; and it is not claimed in any quarter, that it interferes with the 
powers specially delegated to the government of the United States. 
Therefore, when the power of the general assembly to enact such a 
law is drawn in question, the proper inquiry is, whether such an 
exercise of legislative power is clearly prohibited by the constitution. 
The grant of power being general, the question as to the existence of 
a limitation, arising from special prohibition; Baker v. City of Cin¬ 
cinnati, 11 O. S. 534. 

Such prohibition must either be found in express terms, or be 
clearly inferable, by necessary implication, from the language of the 
instrument, when fairly construed according to its manifest spirit and 
meaning: Cass v. Dillon, 2 O. S. 607; State, ex rel., v. Dudley, 1 O. S. 
437; Lehman v. McBride, 15 O. S. 573; see, also. State, ex rel., v. McGann, 
21 O. S. 198. 

For the effect of the adoption of the Ohio constitution upon pre-ex¬ 
isting legislation, see State, ex rel., v. Dudley, 1 O. S. 437; Cass v. Dillon, 

2 O. S. 607. 

The people have thus granted certain political powers, to be exercised 
for their benefit, until they see fit to resume them, and have retained 
others. On looking into the constitution we find the granted powers 
assigned to three great departments of government—the legislative 
power to the general assembly, the executive power to the governor, 
and the judicial power to the courts. Unlike the constitution of the United 
States, and from the necessity of the case, no attempts at a specific 
enumeration of the items of legislative power is made. This must, there¬ 
fore, always be determined from the nature of the power exercised. If it 
is found, to fall within the general terms of the grant, we can only look 
to the other parts of the constitution for limitations upon it; if none are' 
there found, none exist. But, as the general assembly, like the other 
departments of government, exercises only delegated authority it can 
not be doubted that any act passed by it, not falling fairly within the 
scope of legislative power, is as clearly void as though expressly pro¬ 
hibited: Railroad v. Commissioners, 1 O. S. 77. 

This section is limited by other sections; and some of these limiting 
sections are directory, others, mandatory. The section, that all laws of 
a general nature shall have a uniform operation throughout the state is 
mandatory: McGill v. State, 34 O. S. 228. 

The power granted by this section includes all legislative power, and 
if restricted it must be by some other clause in the constitution: Quig¬ 
ley V. State, 5 O. C. C. 638, 3 O. C. D. 310 [affirmed, without report, 
Quigley v. State, 27 Bull. 332]. 

A grant of legislative power is limited by other specific provisions 
of the constitution: Trust Co. v. Telegraph Co., 79 O. S. 89. 

The constitution being an instrument locating the powers of the 
government and defining their exercise, thus establishing and providing 
for the maintenance of a system of government, its interpretation as an 
entirety becomes a duty obviously incumbent upon the courts. The 
occasions for a more comprehensive view are more frequent in the 
interpretation of this than in the interpretation of other instruments: 
State, ex rel., v. Creamer, 83 O. S. 412. 

HI. TAXING POWER. 

Whatever power of taxation resides in the general assembly, does 
so as an incident of the general legislative authority delegated to that 
body by Art. II, § 1; Board of Education v. State, 51 O. S. 531. 





173 


CONSTITUTION OF THE STATE OP OHIO OP 1851. 


The power to impose taxes is a legislative power, and is vested in 
the general assembly by §1, of Art. II, of the constitution: State, 
ex rel., v. Guilbert, 70 O. S. 229; see, to the same effect. Ex parte Mosler, 

8 O. C. C. 324, 4 O. C. D. 82; Scott v. Athens, 1 O. N. P. 94, 1 O. D. (N.P.) 
84; Crawford v. Madigan, 13 O. D. (N.P.) 494; Telegraph Co. v. Poe, 
61 Fed. 449, 8 O. F. D. 158; Insurance C5. v. Commissioners, 99 Fed. 846, 
13 O. F. D. 198. 

The acts of March 28, 1864, and April 16, 1867, authorizing county 
commissioners, township trustees and city councils to levy a tax for the 
payment of bounties to volunteers, are authorized by the general grant 
of legislative power: Trustees v. Dillon, 16 O. S. 38; State, ex rel., v.. 
Harris, 17 O. S. 608; State, ex rel., v. Trustees, 20 O. S. 288; State, 
ex rel., v. Trustees, 20 O. S. 362. 

The act of April 25, 1904, entitled, “An act to impose a tax upon the 
right to succeed or inherit property,” being a tax not upon property, 
but upon the right to inherit or succeed to property, the power to enact 
the same is not affected by the limitations of Art. XII, § 2, of the 
constitution: State, ex rel., v. Guilbert, 70 O. S. 229. 

An act imposing a collateral inheritance tax and discriminating 
among collateral kindred is within the power of the legislature: Hag- 
erty v. State, ex rel., 55 O. S. 613. 

While a state has power to enact an inheritance tax law, such law 
must be in compliance with the other provisions of the constitution: 
State, ex rel., v. Ferris, 53 O. S. 314 [affirming State, ex rel., v. Ferris, 

9 O. C. C. 298, 6 O. C. D. 158]. 

The power of taxation was said to be a part of the legislative 
sovereignty of the state, and is not the subject of contract, or barter, 
or sale, by the legislature in Bank v. Debolt, 1 O. S. 591. 

In 1845 the legislature passed a general banking law, the fifty-ninth 
section of which required the officers to make semiannual dividends, 
and the sixtieth required them to set off six per cent, of such dividends 
for the use of the state, which sum or amount so set off should be in 
lieu of all taxes to which the company, or the stockholders therein would 
otherwise be subject. On March 21, 1851, an act was passed, entitled, 
“An act to tax banks, and bank and other stocks, the same as property 
is now taxable by the laws of this state.” The operation of this law being 
to increase the tax, the question arose whether the latter act, as far as 
it applied to banks organized under the act of 1845, was an act impair¬ 
ing the obligation of a contract, and in contravention of the tenth 
section of the first article of the constitution of the United States. In a 
series of decisions it was held by the supreme court of Ohio that such 
charters were not contracts: Mechanics’ and Traders’ Bank v. Debolt, 
1 O. S. 591; Toledo Bank v. Bond, 1 O. S. 622; Knoup v. Bank, 1 O. S. 
603; Sandusky City Bank v. Wilbor, 7 O. S. 481: Skelly v. Jefferson 
Branch Bank, 9 O. S. 606. But the supreme court of the United States 
reversed those decisions in the cases of Piqua Branch Bank v. Knoop, 
16 Howard, 369; Dodge v. Woolsey, 18 Howard, 331; Mechanics’ and 
Traders’ Bank v. Debolt, 18 Howard, 380; Jefferson Branch Bank v. 
Skelly, 1 Black, 436, holding that the charters of the banks were 
contracts fixing the. amount of taxation, and not a law prescribing a 
rule of taxation until changed by the legislature; that such contracts 
bartering away the power of taxation were valid, and that, therefore, 
the act of 1851 was unconstitutional. 

In our present constitution, as well as in the former, the general 
grant of legislative authority includes the power of taxation in all its 
forms. Restrictions upon its exercise are to be looked for in other parts 
of the instrument. The second section of the twelfth article has estab¬ 
lished the principles upon which all taxes for general revenue purposes 
must be levied; but it does not extend to what was then and is still well 
known as special assessments, because the sixth section of the thirteenth 
article shows that they were not intended: Hill v. Higdon, 5 O. S. 243. 

The general grant of legislative power vested in the general assem¬ 
bly by this section includes the power to collect revenue for public 
purposes and the limitations on the exercise of this power are to be 
found in other provisions of this instrument, and in the constitution 
of the United States: Telegraph Co. v. Mayer, 28 O. S. 521. 

The legislative power with respect to taxation is not unlimited: 
State, ex rel., v. Commissioners, 35 O. S. 458. 

The power of taxation is not limited to the payment of legal claims; 
but extends to those founded only in justice and moral obligation: 
Warder v. Commissioners, 38 O. S. 639. 

The power of taxation is limited, but not conferred by Art. XII, § 2, 
of the constitution. It is included in the legislative power conferred on 
the general assembly by Art. H, § 1, of that instrument. The limitation 
is on the power to raise revenue by the taxation of property; all other 
recognized modes of exercising the power may be resorted to by the 
legislature whenever in its wisdom it may be deemed necessary: Adler 
V. Whitbeck, 44 O. S. 539. 


Art.II, §1. 




174 


Art.II, § 1. CONSTITUTION OP THE STATE OP OHIO OP 1851. 


This section confers upon the general assembly the power of taxa¬ 
tion, but their power extends only to the levying of taxes for the pur¬ 
pose of the state. The act, entitled, “An act to provide relief for worthy 
blind” (97 O. L. 392), requires the expenditure of public funds for a pri¬ 
vate purpose and is unconstitutional: Lucas County v. State, ex rel., 75 
O. S. 114 [reversing Davies v. State, ex rel., 6 O. C. C. (N.S.) 417, 17 O. C. 
D. 593]. 

The power to authorize assessments, as distinguished from taxes 
proper, is comprehended in the general grant of legislative power to 
the general assembly: Reeves v. Treasurer, 8 O. S. 333. 

The power to authorize assessments for the construction of free 
turnpike roads, and the opening of drains, as well as for the improve¬ 
ment of treets and sidewalks, exists to the same extent under the 
present constitution as under that of 1802: Reeves v. Treasurer, 8 
O. S. 333. 

The legislature, in the exercise of the general power of taxation, as 
distinguished from the power of local assessment, may create a special 
taxing district without regard to mujjicipal or political subdivisions of 
the state, and may levy a tax on all property within such district by a 
uniform rule, according to its true value in money, for the purpose of 
defraying the expenses of constructing and maintaining public roads 
therein: Bowles v. State, 37 O. S. 35. 

The levying of taxes by the county commissioners under G. C. 
§§ 9262-9266, for the purchase of toll roads, in order to make them 
free to the public, is a constitutional exercise of the taxing power. 
The levy is for a public purpose: Warder v. Commissioners, 38 O. S. 
639. 

A per capita tax on dogs is not inhibited by the constitution. While 
the purpose of a statute imposing such tax is the protection of wool- 
growers, it is an exercise of the police power, and not of the taxing 
power vested in the general assembly: Holst v. Roe, 39 O. S. 340. 

The power of taxation, however, included in the legislative power 
vested in the general assembly by Art. II, § 1, of the constitution is, 
indeed, wisely regulated and limited by that instrument; but we may 
well ask what avails the power of taxation, if there is no commensurate 
power to collect taxes and assessments when imposed. It is not, there¬ 
fore, we think, beyond the scope of the legislative authority of the state, 
to enact that the payment of a tax on the business of the liquor traffic 
shall be secured by a lien on the premises upon which the business is 
carried on, when the tenant holds under a lease made after the passage 
of the statute: Anderson v. Brewster, 44 O. S. 576. 

The legislative branch has the exclusive power of taxation. It 
may in the absence of constitutional restrictions delegate the taxing 
power to municipalities in such measure as it deems expedient, but it 
can not confer any greater power than the state itself possesses, and it 
must observe the restrictions and limitations of the organic law: State, 
ex rel., v. Toledo, 48 O. S. 112. 

The power to value property for taxation is a legislative power 
and is conferred upon the general assembly by the general grant of 
legislative power in Art. II, § 1: Crawford v. Madigan, 13 O. D. (N.P.) 
494. 

IV. INTOXICATING LIQUORS. 

Under this section, in the absence of constitutional limitations, the 
power would be ample for the making of laws absolutely prohibiting 
all traffic in intoxicating liquor: State v. Frame, 39 O. S. 399. 

Under this section the general assembly may legislate upon the 
traffic of intoxicating liquors, and may make it the subject of a tax: 
Senior v. Ratterman, 44 O. S. 661. 

The act, entitled, “An act to further provide against the evils result¬ 
ing from the traffic in intoxicating liquors, by local option, in any town¬ 
ship in the state of Ohio,” passed March 3, 1888 (G. C. § 6119), is not in 
conflict with this section: Gordon v. State, 46 O. S. 607. 

The provisions of the Brannock law, whereby forty per cent, of the 
voters of a residence district may flx the boundaries of the district by 
their petition to determine whether said district shall be “wet” or 
“dry,” is not an invasion of the legislative power and does not con¬ 
travene this section: Ely v. Willard, 2 O. N. P. (N.S.) 571, 15 O. D. 
(N.P.) 318. 

The provisions in the subject of local option in a municipality (G. C. 
§ 6127, et seq.) are valid under this section of the constitution: State, 
ex rel., v. Dollison, 194 U. S. 445, 14 O. F. D. 380 [affirming State, ex rel., 
V Dollison, 68 O. S. 688, which affirmed Lloyd v. Dollison, 13 O. C D 
571]. 


V. PUBLIC CORPORATIONS AND OFFICERS. 

The power to detach territory from a municipal corporation is in 
its nature legislative and is conferred upon the assembly by this section: 
Metcalf V. State, ex rel.,. 49 O. S. 586. 



175 


CONSTITUTION OP THE STATE OP OHIO OP 1851. 


The act passed May 17, 1886, entitled, “An act to establish an efficient 
board of public affairs in cities of the first grade, of the first class” 
(83 V. 173) is within the legislative power conferred on the general 
assembly by Art. II, § 1, of the constitution: State, ex rel., v. Smith, 
44 O. S. 348. 

The general assembly, under the general grant of legislative power 
contained in this section, may, by law, create a board of police commis¬ 
sioners for a city, to be appointed by the governor, and confer upon 
such board the power to appoint and control the policemen of such city; 
and it is no objection to such law that, previous to the adoption of the 
constitution, the electors of the cities of the state had uniformly 
elected or appointed their own policemen, either directly or indirectly: 
State, ex rel., v. Covington, 29 O. S. 102. 

A statute granting authority to lay pipes, for the purpose of supply¬ 
ing steam heat, in the streets of municipal corporations, would be clearly 
authorized by the general grant of legislative power: Kumler v. Silsbee, 
38 O. S. 445. 

The general assembly, under the general grant of legislative power, 
secured to it by the constitution, has power to provide by statute for 
the registration of voters and to enact that all electors must register 
before being permitted to vote: Daggett v. Hudson, 43 O. S. 548. 

An act providing that the term of office of clerks thereafter elected, 
should begin on the first Monday of August next after their election, is 
valid: State, ex rel., v. McCracken, 51 O. S. 123. 

The act prohibiting the placing of candidates’ names on ballots more 
than once is within the power of the legislature: State, ex rel., v. Bode, 
55 O. S. 224. 

By this section the assembly is not authorized to confer powers 
upon courts beyond the authority vested in the assembly by the fourth 
or judicial article, and the power to grant an injunction in a case 
pending in the court of common pleas can not constitutionally be 
conferred on this court: Kent v. Mahaffy, 2 O. S. 498. 

An act authorizing the county commissioners to improve a certain 
road and issue bonds therefor, is invalid, because it is a matter 
administrative, not legislative: State, ex rel., v. Bader, 12 O. C. C. 659, 
6 O. C. D. 703. 

The statutes creating the railroad commission, G. C. § 487, et seq.. 
are valid and constitutional: Railway v. Railroad Commission, 21 O. D. 
(N.P.) 468. 

See, also, on this question. Art. II, § 26, III, A, B and C, and 
Art. XIII, § 1; Art. XIII, § 6. 

VI. POIilCE POW ER. 

The act of March 1, 1900 (94 O. L. 33, R. S. §4364-891), entitled, “An 
act for the better protection of life and property against injury or 
damage resulting from the operation of steam boilers, by incompetent 
engineers and others, and to repeal an act therein named,” known as 
the Roberts law, is in conflict with Art. II, § 1, and is, therefore, void: 
Harmon v. State, 66 O. S. 249 (for this act as amended, see G. C, § 1039, 
et seq.). 

The grant of legislative power by this section is broad enough to 
warrant the general assembly in constituting the tramp a class by him¬ 
self and legislating for his suppression: State v. Hogan, 63 O. S. 202. 

The general assembly has power, except as limited by § 18, of the 
schedule to the constitution, to regulate occupations by license, and to 
compel by imposition of a fine, payment of a reasonable fee, where a 
special benefit is conferred by the public upon those who follow an occu¬ 
pation, or where the occupation imposes special burdens on the public, 
or where it is injurious or dangerous to the public: Marmet v. State, 45 
O. S. 63. 

The enactment of laws for the inspection of commodities, is the 
exercise of a legislative power recognized and sanctioned by long and 
unquestioned usage here and elsewhere, and is included in the general 
grant of legislative power conferred by the constitution upon the 
general assembly: and among the general, if not the invariable, inci¬ 
dents and characteristic features of this class of laws, is the imposi¬ 
tion of a charge upon the owners or possessors of the commodities 
inspected for the services of the inspector, although these services 
may have been rendered in invitum as to such owner or possessor. 
It is the legitimate exercise of government supervision over the 
business of the manufacturers and vendors of certain commodities, in 
order to protect the public at home and abroad against imposition and 
fraud, and incidentally to protect manufacturers and vendors themselves 
against unfounded and unjust claims of vendees and consumers, as well 
as against the consequences of their own shortsighted cupidity: Coke 
Co. V. State, 18 O. S. 237. 

VII. JUDICIAI. POWER. 

While the legislature may pass a so-called declaratory statute which 
in reality changes the pre-existing law and makes such new statute 


Art.II, § 1. 



176 


Art.II, §1. CONSTITUTION OF TUB STATE OF OHIO OF 1851. 


apply to cases which apply after its passage, it can not make such 
statute apply as to cases which arose before its passage: Schooner 
Aurora Borealis v. Dobbie, 17 O. S. 125. 

The enactment of the a'’t of March 19, 1868, entitled, “An act 
supplementary to an act, entitled, ‘An act to establish a code of civil 
procedure,’ passed March 11, 1853,” is not the exercise of judicial 

function, but is within the legislative powers of the general assembly: 
Peters v. McWilliams, 36 O. S. 155. 

Rules of evidence are part of the substantive law of the state, and 
power to make, alter or repeal such rules is vested in the assembly by 
virtue of this section: State v. Weston & McMahon, 1 O. N. P. 350, 

3 O. D. (N.P.) 15. 

The supreme court has held that the legislature can not make sales 
of stocks of goods in bulk presumptively fraudulent: Williams & 
Thomas Co. v. Preslo, 84 O. S. 328. 

A state may make prima facie rules of evidence if there is some 
rational connection between the fact proved, and the ultimate fact 
presumed, and if the adversary party is given a reasonable opportunity 
to present his defense: Mobile R. R. v. Turnipseed, 219 U. S. 35; 
Lendsley v. Natural Carbonic Gas Co., 220 U. S. 61, 

VIII. VESTING POWER IN THE GENERAL ASSEMBLY. 

This section is a declaration that all the power, legislative in char¬ 
acter, of the people within the limits of the territory of Ohio and organ¬ 
ized into a government under thi^ constitution, is vested in the general 
assembly: State v. Frame, 39 O. S. 399; see, also, Plank Road Company 
V. Husted, 3 O. S. 578. 

This section confers the legislative power upon the general assembly 
as a unit, and a single branch of the general assembly so acting has no 
power of independent legislation except as expressly granted in the con¬ 
stitution, or as necessarily implied in the express grants: State, ex rel., 
V. Guilbert, 75 O. S. 1. 

IX. DELEGATION OF LEGISLATIVE POWER. 

The entire legislative power of the state is vested in the general 
assembly by this section, and even without the limitation contained in 
Art. II. § 26, it could not be delegated: State, ex rel., v. Garver, 66 O. S. 
555. 

The legislative branch of the state government is expressly prohib¬ 
ited from exercising judicial powers, except as expressly conferred in 
the constitution, and it is expressly empowered to define the jurisdiction 
of the courts. Under the constitution of this state the power of defining 
the functions of the judicial department is only limited by the general 
rule that a grant of general powers to any department constitutes of 
itself an implied exclusion of all other departments from the exercise 
of such powers; and when the constitution does not distinctly define and 
distribute judicial powers, and it is not clear whether an act is wholly 
the exercise of legislative, executive or judicial power, it is within the 
power of the general assembly as the depository of the legislative 
power of the state, to determine by which department it shall be 
exercised: Fairview v. Giffee, 73 O. S. 183. 

The foundation of the argument against the constitutionality of 
this act is laid upon the doctrine of the distribution of governmental 
powers and functions. It seems to be assumed that the separation of 
executive, legislative, and judicial powers is complete and distinct under 
the constitution. Theoretically it is so, but in practice it is not so and 
never was so; and by the best modern writers on political science it is 
recognized to be practically impossible to define the line of demarkation 
between the different departments of government. This was well 
expressed in Taylor v. Place, 4 R. I. 332: “To some extent, and in some 
sense, each of the powers must be exercised by every other department 
of the government in order to the proper performance of its duty.” So 
likewise it was said by White, J., in State, ex rel., v. Harmon, 31 O. S. 
250, that “The distribution of powers among the legislative, executive 
and judicial branches of the government, is, in a general sense, easily 
understood; but no exact rule can be laid down, a priori, for determin¬ 
ing, in all cases, what powers may or may not be assigned by law to 
each branch. The power of allotting to the different departments of 
government their appropriate functions is a legislative power; and, in so 
far as the distribution has not been made in the constitution, the power 
to make it is in the general assembly, as the depository of the legis¬ 
lative power of the state.” 

It was long ago convincingly pointed out by Bentham, that the work 
of the judiciary is, in its final analysis, chiefiy judicial legislation; and 
a distinguished publicist of the present day. Prof. Goldwin Smith, has 
declared that, “the separation of the executive power from the legis¬ 
lative is a dream, though Montesquieu has established the belief that it 
is one of the great securities of liberty.” And just here it is of some 



177 


CONSTITUTION OP THE STATE OP OHIO OP 1851. 


importance to note the absence of a distributive clause in the constitu¬ 
tion of Ohio, although such a clause appears in the constitution of 
most of the states. It is nevertheless true, in the American theory of 
government, that each of the three grand divisions of government must 
be protected from encroachments by the others, so far that its integrity 
and independence may be preserved. From these considerations it 
seems to us that at the outset of this argument too much has been 
assumed for its fundamental proposition. 

While there is no clause in the constitution of this state expressly 
distributing the powers of government, and none expressly restricting 
the executive and judicial branches, the legislative branch is expressly 
prohibited from exercising judicial powers, except as expressly con¬ 
ferred in the constitution, and it is expressly empowered to define the 
jurisdiction of the courts. The power of defining the functions of the 
executive and judicial departments is clearly a legislative power, which, 
under the constitution of Ohio, is only limited by the general principle 
that a grant of general powers to any department constitutes of itself 
an implied exclusion of all other departments from the exercise of such 
powers. We quote again from State, ex rel., v. Harmon, supra. “In so 
far as the distribution has not been made in the constitution, the powe" 
to make it is vested in the general assembly, as the depository of thf 
legislative power of the state.” So that when we come to the border 
line of legislative power and it is difficult to determine whether an act 
is wholly within the legislative domain or entirely within the judicial 
boundaries, the constitution not having clearly defined its position. It 
is within the power and duty of the legislature to determine to which 
department it shall belong: Fairview v. Giffee, 7.^ O. S. 183. 

General Code § 3578, which provides for detaching unplatted farm 
lands from municipal corporations does not confer legislative power 
upon a court of common pleas or judge thereof and is valid and con¬ 
stitutional: Fairview v. Giffee, 73 O. S. 183; Village of Grover Hill 
V. McClure, 6 O. C. C. (N.S.) 197, 17 O. C. D. 376 [affirmed, without 
report, Grover Hill v. McClure, 72 O. S. 6761. 

A general assembly can not delegate to any other body or to the 
public directly the power to pass laws: Railway v. Commissioners, 1 O. 
S. 77. 

A statute which authorizes county commissioners to subscribe to the 
capital stock of a railroad, provided a majority of the electors of such 
county will consent thereto at an election held for that purpose, is not 
a delegation of legislative power: Railway v. Commissioners, 1 O. S. 77. 

General Code § 9178, et seq., which authorizes a probate court to 
determine the method in which a telephone and telegraph company 
is to make use of the streets of a municipal corporation is not a grant 
of legislative power, and is not in conflict with this provision: Zanes¬ 
ville V. Telegraph Co., 64 O. S. 67 [reversing on rehearing, Zanesville 
V Telegraph Co., 63 O. S. 442, and affirming Telegraph Co. v. Zanesville 
20 O. C. C. 34, 10 O. C. D. 783, which reversed Telegraph Co. v. Zanes¬ 
ville, 10 O. D. (N.P.) 134]. 

General Code § 9178 is constitutional, but the judgment must be a 
judicial determination, and not a general grant as to the use of all the 
streets of a municipality, which would be legislative and in violation 
of this section: Telephone Co. v. Cincinnati, 5 O. C. C. (N.S.) 411, 17 
O. C. D. 385 [affirmed. Telephone Co. v. Cincinnati, 73 O. S. 64]. 

1 Debates, 163-166, 168-171; 2 Debates, 141, 318, 560, 632, 664, 807, 831, 
857, 870. 

X. VALIDITY OP INITIATIA E AND REFERENDUM PROVISIONS. 

Whether the provisions of a state constitution for the initiative and 
referendum render the government of the state one which is not 
republican in form as required by Art. IV, § 4 of the constitution of the 
United States is a political and not a legal question; and the Supreme 
Court of the United States has no jurisdiction to declare unconstitu¬ 
tional a statute which is otherwse valid on the sole ground that it was 
adopted by the initiative; Pacific States Telephone and Telegraph Co. v. 
Oregon, 223 U. S. 118 [dismissing writ of error to, Oregon v. Telegraph 
Co., 53 O. S. 162]; Kiernan v. Portland, 223 U. S. 151 [dismissing writ of 
error to Kiernan v. Portland, 57 O. S. 454]. 

Section la. The first aforestated power reserved by the 
people is designated the initiative and the signatures of ten 
per centum of the electors shall be required upon a petition to 
propose an amendment to the constitution. When a petition 
signed by the aforesaid required number of electors, shall have 
been filed with the secretary of state, and verified as herein 


Art.II, § la. 


Initiative and 
Referendum. 



Art.II, § lb. 

178 

CONSTITUTION OF THE STATE OP OHIO OP 1851. 

Initiative and 
Referendum. 

provided, proposing an amendment to the constitution, the full 
text of which shall have been set forth in such petition, the 
secretary of state shall submit for the approval or rejection of 
the electors, the proposed amendment, in the manner hereinafter 
provided, at the next succeeding regular or general election 
in any year occurring subsequent to ninety days after the filing 
of such petition. The initiative petitions, above described, shall 
have printed across the top thereof: “Amendment to the Con¬ 
stitution Proposed by Initiative Petition to be Submitted Directly 
to the Electors.” (Adopted September 3, 1912.) 

Vote: “Yes,” 312,592; “No,” 231,312. In effect October 1, 1912. 

Section lb. When ^at any time, not less than ten days 
prior to the commencement of any session of the general as¬ 
sembly, there shall have been filed with the secretary of state a 
petition signed by three per centum of the electors and verified 
as herein provided, proposing a law, the full text of which shall 
have been set forth in such petition, the secretary of state shall 
transmit the same to the general assembly as soon as it con¬ 
venes. If said proposed law shall be passed by the general 
assembly, either as petitioned for or in an amended form, it 
shall be subject to the referendum. If it shall not be passed, 
or if it shall be passed in an amended form, or if no action 
shall be taken thereon within four months from the time it is 
received by the general assembly, it shall be submitted by the 
secretary of state to the electors for their approval or rejection 
at the next regular or general election, if such submission shall 
be demanded by supplementary petition verified as herein pro¬ 
vided and signed by not less than three per centum of the 
electors in addition to those signing the original petition, which 
supplementary petition must be signed and filed with the secre¬ 
tary of state within ninety days after the proposed law shall 
have been rejected by the general assembly or after the expira¬ 
tion of such term of four months, if no action has been taken 
thereon, or after the law as passed by the general assembly 
shall have been filed by the governor in the office of the secre¬ 
tary of state. The proposed law shall be submitted in the form 
demanded by such supplementary petition, which form shall 
be either as first petitioned for or with any amendment or 
amendments which may have been incorporated therein by either 
branch or by both branches of the general assembly. If a pro¬ 
posed law so submitted is approved by a majority of the electors 
voting thereon, it shall be the law and shall go into effect as 
herein provided in lieu of any amended form of said law which 
may have been passed by the general assembly, and such 
amended law passed by the general assembly shall not go into 
effect until and unless the law proposed by supplementary peti¬ 
tion shall have been rejected by the electors. All such initiative 
petitions, last above described, shall have printed across the top 
thereof, in case of proposed laws: “Law Proposed by Initiative 
Petition First to be Submitted to the General Assembly.” Bal¬ 
lots shall be so printed as to permit an affirmative or negative 
vote upon each measure submitted to the electors. Any pro¬ 
posed law or amendment to the constitution submitted to the 




179 


CONSTITUTION OF THE STATE OF OHIO OF 1851 . 


electors as provided in section la and section ib, if approved 
by a majority of the electors voting- thereon, shall take effect 
thirty days after the election at which it was approved and shall 
be published by the secretary of state. If confecting proposed 
laws or conflicting proposed amendments to the constitution 
shall be approved at the same election by a majority of the 
total number of votes cast for and against the same, the one 
receiving the highest number of affirmative votes shall be the 
law, or in the case of amendments to the constitution shall be 
the amendment to the constitution. No law proposed by initia¬ 
tive petition and approved by the electors shall be subject to the 
veto of the governor. (Adopted September 3, 1912.) 

Vote: “Yes,” 312,592; “No,” 231,312. In effect October 1, 1912. 

Section Ic. The second aforestated power reserved by 
the people is designated the referendum, and the signatures of 
six per centum of the electors shall be required upon a petition 
to order the submission to the electors of the state for their 
approval or rejection, of any law, section of any .law or any 
item in any law appropriating money passed by the general 
assembly. No law passed by the general assembly shall go 
into effect until ninety days after it shall have been filed by 
the governor in the office of the secretary of state, except as 
herein provided. When a petition, signed by six per centum 
of the electors of the state and verified as herein provided, shall 
have been filed with the secretary of state within ninety days 
after any law shall have been filed by the governor in the office 
of the secretary of state, ordering that such law, section of such 
law or any item in such law appropriating money be submitted 
to the electors of the state for their approval or rejection, the 
secretary of state shall submit to the electors of the state for 
their approval or rejection such law, section or item, in the 
manner herein provided, at the next succeeding regular or 
general election in any year occurring subsequent to sixty days 
after the filing of such petition, and no such law, section or 
item shall go into effect until and unless approved by a majority 
of those voting upon the same. If, however, a referendum peti¬ 
tion is filed against any such section or item, the remainder of 
the law shall not thereby be prevented or delayed from going 
into effect. (Adopted September 3, 1912.) 

Vote: “Yes,” 312,592; “No,” 231,312. In effect October 1, 1912. 

Section Id. Laws providing for tax levies, appropriations 
for the current expenses of the state government and state insti¬ 
tutions, and emergency laws necessary for the immediate preser¬ 
vation of the public peace, health or safety, shall go into imme¬ 
diate effect. Such emergency laws upon a yea and nay vote 
must receive the vote of two-thirds of all the members elected 
to each branch of the general assembly, and the reasons for 
such necessity shall be set forth in one section of the law, 
which section shall be passed only upon a yea and nay vote, 
upon a separate roll call thereon. The laws mentioned in this 
section shall not be subject to the referendum. (Adopted Sep¬ 
tember 3, 1912.) 

Vote: “Yes,” 312,592; “No,” 231,312. In effect October 1, 1912. 


Art.II, § Ic. 


Initiative and 
Referendum. 


Initiative and 
Referendum. 



180 


Art.II, § le. 


Initiative and 
Referendum. 


Initiative and 
Referendum. 


Initiative and 
Referendum. 


CONSTITUTION OP THE STATE OF OHIO OF 1851. 


Section le. The powers defined herein as the “initiative” 
and “referendum” shall not be used to pass a law authorizing 
any classification of property for the purpose of levying different 
rates of taxation thereon or of authorizing the levy of any 
single tax on land or land values or land sites at a higher rate 
or by a different rule than is or may be applied to improvements 
thereon or to personal property. (Adopted September 3, 1912.) 

Vote: “Yes,” 312,592; “No,” 231,312. In effect October 1, 1912. 

Section If. The initiative and referendum powers are 
hereby reserved to the people of each municipality on all ques¬ 
tions which such municipalities may now or hereafter be author¬ 
ized by law to control by legislative action; such powers shall 
be exercised in the manner now or hereafter provided by law. 
(Adopted September 3, 1912.) 

Vote: “Yes,” 312,592; “No,” 231,312. In effect October 1, 1912. 

Section Ig*. Any initiative, supplementary or referendum 
petition may be presented in separate parts, but each part shall 
contain a full and correct copy of the title and text of the law, 
section or item thereof sought to be referred, or the proposed 
law or proposed amendment to the constitution. Each signer 
of any initiative, supplementary or referendum petition must be 
an elector of the state and shall place on such petition after his 
name the date of signing and his place of residence. A signer 
residing outside of a municipality shall state the township and 
county in which he resides. A resident of a municipality shall 
state in addition to the name of such municipality, the street and 
number, if any, of his residence and the ward and precinct in 
which the same is located. The names of all signers to such 
petitions shall be written in ink, each signer for himself. To 
each part of such petition shall be attached the affidavit of the 
person soliciting the signatures to the same, which affidavit shall 
contain a statement of the number of the signers of such part of 
such petition and shall state that each of the signatures attached 
to such part was made in the presence of the affiant that to the 
best of his knowledge and belief each signature on such part 
is the genuine signature of the person whose name it purports 
to be, that he believes the persons who have signed it to be 
electors, that they so signed said petition with knowledge of the 
contents thereof, that each signer signed the same on the date 
stated opposite his name; and no other affidavit thereto shall be 
required. The petition and signatures upon such petitions, so 
verified, shall be presumed to be in all respects sufficient, unless 
not later than forty days before the election, it shall be other¬ 
wise proved and in such event ten additional days shall be 
allowed for the filing of additional signatures to such petition. 
No law or amendment to the constitution submitted to the elec¬ 
tors by initiative and supplementary petition and receiving an 
affirmative majority of the votes cast thereon, shall be held 
unconstitutional or void on account of the insufficiency of the 
petitions by which such submission of the same was procured; 
nor shall the rejection of any law submitted by referendum peti¬ 
tion be held invalid for such insufficiency. Upon all initiative, 
supplementary and referendum petitions provided for in any of 



181 


CONSTITUTION OF THE STATE OF OHIO OF 1851 . 


the sections of this article, it shall be necessary to file from each 
of one-half of the counties of the state, petitions bearing the 
signatures of not less than one-half of the designated percentage 
of the electors of such county. A true copy of all laws or pro¬ 
posed laws or proposed amendments to the constitution, together 
with an argument or explanation, or both, for, and also an 
argument or explanation, or both, against the same, shall be 
prepared. The person or persons who prepare the argument 
or explanation, or both, against any law, section or item, sub¬ 
mitted to the electors by referendum petition, may be named in 
such petition and the persons who prepare the argument or 
explanation, or both, for any proposed law or proposed amend¬ 
ment to the constitution may be named in the petition proposing 
the same. The person or persons who prepare the argument 
or explanation, or both, for the law, section or item, submitted 
to the electors by referendum petition, or against any proposed 
law submitted by supplementary petition, shall be named by the 
general assembly, if in session, and if not in session then by 
the governor. The secretary of state shall cause to be printed 
the law, or proposed law, or proposed amendment to the con¬ 
stitution, together with the arguments and explanations, not 
exceeding a total of three hundred words for each, and also the 
arguments and explanations, not exceeding a total of three hun¬ 
dred words against each, and shall mail, or otherwise distribute, 
a copy of such law, or proposed law, or proposed amendment to 
the constitution, together with such arguments and explanations 
for and against the same to each of the electors of the state, 
as far as may be reasonably possible. Unless otherwise pro¬ 
vided by law, the secretary of state shall cause to be placed upon 
the ballots, the title of any such law, or proposed law^ or pro¬ 
posed amendment to the constitution, to be submitted. He shall 
also cause the-ballots so to be printed as to permit an affirmative 
or negative vote upon each law, section of law, or item in a law 
appropriating money, or proposed law or proposed amendment 
to the constitution. The style of all laws submitted by initiative 
and supplementary petition shall be: “Be it Enacted by the 
People of the State of Ohio,” and of all constitutional amend¬ 
ments : “Be It Resolved by the People of the State of Ohio.” 
The basis upon which the requred number of petitioners in any 
case shall be determined shall be the total number of votes cast 
for the office of governor at the last preceding election therefor. 
The foregoing provisions of this section shall be self-executing, 
except as herein otherwise provided. Laws may be passed to 
facilitate their operation, but in no way limiting or restricting 
either such provisions or the powers herein reserved. (Adopted 
September 3, 1912.) 

Vote: “Yes,” 312,592; “No,” 231,312. In effect October 1, 1912. 

Section 2. Senators and representatives shall be elected 
biennially by the electors of the respective counties or districts, 
on the first Tuesday after the first Monday in November; their 
term of office shall commence on the first day of January next 
thereafter, and continue two years. (As amended October 13, 
1885: 82 V. 446.) 

As to time of holding elections, see Art. XVI, § 1. 


Art.II, § 2. 


When chosen. 



182 


Art.II, § 3. 


Residence. 


Eligibility. 


Who shall not 
hold office. 


Powers of each 
house. 


CONSTITUTION OP THE STATE OP OHIO OP 1851. 


Original § 2 read as follows: “Sec. 2. [When chosen.] Senators 
and representatives shall be elected biennially, by the electors in the 
respective counties or districts, on the second Tuesday of October; 
their term of office shall commence on the ‘first day of January 
next thereafter, and continue two years.” (See Const. 1802, Art. I, 
§§ 3 and 5.) 

Cited by mistake: State, ex rel., v. Carver, 13 O. C. D. 140. 

1 Debates, 171-179, 181-226; 2 Debates, 141-149, 318, 560, 632, 664, 807, 
831, 857, 870. 

Section 3. Senators and i^epresentatives shall have re¬ 
sided in their respective counties, or districts, one year next 
preceding their election, unless they shall have been absent on 
the public business of the United States, or of this state. (See 
Const. 1802 , Art. I, §§ 4 , 7 .) 

See Const. 1802, Art. I, §§ 4 and 7. 

1 Debates, 163, 217, 218, 226-228; 2 Debates, 142, 149, 215, 318, 560, 632, 
664, 807, 831, 857, 870. 

Section 4. No person holding office under the authority 
of the United States, or any lucrative office under the authority 
of this state, shall be eligible to, or have a seat in, the general 
assembly; but this provision shall not extend to township of¬ 
ficers, justices of the peace, notaries public, or officers of the 
militia. (See Const. 1802 , Art. I, § 26 .) 

See Const. 1802, Art. I, § 26. 

A clerk in the United States pension agency serving by appointment 
for a period not exceeding three months and compensated with money of 
the United States appropriated for that purpose by congress, having 
no duties defined by law nor discretion to act independently of the 
direction of the pension agent, is not “holding an office under the author¬ 
ity of the United States” within the meaning of Art; II, § 4, of the 
constitution of the state which renders persons so holding office ineli¬ 
gible to membership in the general assembly: State, ex rel., v. Mason, 
61 O. S. 62. 

1 Debates, 163, 257, 258; 2 Debates, 164, 182-185, 318, 567, 633, 664, 
807, 831, 857, 870. 

Section 5. No person hereafter convicted, of an embez¬ 
zlement of the public funds, shall hold any office in this state; 
nor shall any person, holding public money for disbursement, 
or otherwise, have a seat in the general assembly, until he shall 
have accounted for, and paid such money into the treasury. 
(See Const. 1802 , Art. I, § 28 .) 

See Const. 1802, Art. I, § 28. 

Cited: Mason v. State, ex rel., 58 O. S. 30. 

1 Debates, 163, 164, 258; 2 Debates, 164, 318, 567, 568, 577, 578, 633, 664, 
807, 831, 857, 870 

Section 6 . Each house shall be judge of the election, 
returns, and qualifications of its own members; a majority of all 
the members elected to each house shall be a quorum to do bus¬ 
iness; but a less number may adjourn from day to day, and 
compel the attendance of absent members, in such manner, and 
under such penalties, as shall be prescribed by law. (See Const. 
1802 , Art. /, § 8 .) 

See Const. 1802, Art. I, § 8. 

Cited in dissenting opinion in State, ex rel., v. Smith, 44 O. S. 348. 

This section is to be construed with Art. II, § 4, and though the 
general assembly does not act, the court can not evade that duty: State, 
ex rel., v. Mason, 61 O. S. 513. 

The jurisdiction which Art. II, § 6, confers upon each house of the 
general assembly “to judge of the election returns and qualifications of 
its own members,” was said to be exclusive in Dalton v. State, ex rel., 
43 O. S. 653; Johnson, J., dissented [reversing State, ex rel., v. Dalton 
1 O. C. C. 139, 1 O. C. D. 82]. 




183 


CONSTITUTION OF THE STATE OP OHIO OP 1851. Art.II, § 7. 


A legislative committee on privileges and elections, of either house 
of the general assembly, may command a clerk of the courts to pro¬ 
duce a poll book, and upon his refusal may commit him to jail for 
contempt: Ex parte Dalton, 44 O. S. 142. 

This section contains some of the powders granted to the senate or 
house acting separately: State, ex rel., v. Guilbert, 75 O. S. 1. 

1 Debates, 163, 228, 229; 2 Debates, 149, 150, 219, 220, 318, 560, 632, 

664, 807, 831, 832, 857, 870. 

Section 7. The mode of ore^anizins: the house of repre- Organization of 
sentatives, at the commencement of each regular session, shall sentatives. 
be prescribed by law. (See Const. 1802 , Art. /, § 8 .) 

See Const. 1802. Art. I, § 8. 

This is one of the sections in vphich power is granted the house to 
act separately (see obiter): State, ex rel., v. Guilbert, 75 O. S. 1. 

2 Debates, 214, 215, 634, 664, 807, 832, 857, 870. 

Section 8 . Each house, except as otherwise provided in and right 

1 11 1 • ^ rn 1 . . of punishment 

this constitution, shall choose its own omcers, may determine its and expulsion, 
own rules of proceeding, punish its members for disorderly con- each*hSse°of^^ 
duct; and, with the concurrence of two-thirds, expel a member, general assembly, 
but not the second time for the same cause; and shall have all 
powers necessary to provide for its safety and the undisturbed 
transaction of its business, and to obtain, through committees 
or otherwise, information affecting legislative action under con¬ 
sideration or in contemplation, or with reference to any alleged 
breach of its privileges or misconduct of its members, and to 
that end to enforce the attendance and testimony of witnesses, 
and the production of books and papers. (As amended Sep¬ 
tember 3 , 1912 .) 

Vote: “Yes,” 348,779; “No,” 175,337. 

Original § 8 read as follows: “Sec. 8. [Rules and right of punish¬ 
ment and expulsion. Investigation by each house of general assembly.] 

Each house, except as otherwise provided in this constitution, shall 
choose its own officers, may determine its own rules of proceeding, 
punish its members for disorderly conduct; and, with the concur¬ 
rence of two-thirds, expel a member, but not the second time for 
the same cause; and shall have all other powers, necessary to provide 
for its safety, and the undisturbed transaction of its business. (See 
Const. 1802, Art. I, § 11.)” 

This section is to be construed with § 4, of Art. II: State, ex rel., 

V. Mason, 61 O. S. 513. 

This section defines power which the house and senate may exercise, 
acting separately: State, ex rel., v. Guilbert, 75 O. S. 1. 

1 Debates, 163, 229; 2 Debates, 220, 240, 318, 560, 632, 664, 807, 832, 

857, 870. 

Section 9. Each house shall keep a correct journal of its journai,^and ^ 
proceedings, which shall be published. At the desire of any 
two members, the yeas and nays shall be entered upon the 
journal; and, on the passage of every bill, in either house, the 
vote shall be taken by yeas and nays, and entered upon th^ 
journal; and no law shall be passed in either house, without 
the concurrence of a majority of all the members elected thereto. 

(See Const. 1802 , Art. 1, § 9 .) 

See Const. 1802, Art. I, § 9. 


I. Cited. Majority vote. 

II*. Journals of each house as 
evidenee. 


I. CITED. 

State, ex rel., v. Jones, 22 O. C. C. 682. 11 O. C. D. 496 [reversed, 

Platt V. Craig, 66 O. S. 75]. * ^.v, + 

Referred to as a section which conveys powers granted to the senate 
or house, acting separately: State, ex rel., v. Guilbert, 75 O. S. 1. 



184 


Art.II, §9. CONSTITUTION OF THE STATE OF OHIO OF 1851. 


II. JOURNALS OF EACH HOUSE AS EVIDENCE. 

Where the journal of each house of the general assembly shows 
that a law received the concurrence of the number of members required 
by the constitution for its adoption and that it was publicly signed in 
the presence of each house by its presiding officer, as required by 
Art. II, § 17, of the constitution, its authenticity can not be impeached by 
parol evidence that one or more of the members in either house, 
recorded as concurring in its adoption, had prior thereto, been seated 
upon the determination of a contested election, by less than a constitu¬ 
tional quorum, although the concurrence of such member or members 
was necessary to the number of vcrtes required by the constitution for 
the passage of the law: State, ex rel., v. Smith, 44 O. S. 348. 

The legislative journals furnish the appropriate evidence on the 
question whether a bill has been passed by the requisite number of votes. 
Were we to hold otherwise we would in effect hold that a bill might 
become a law without receiving the number of votes required by the 
constitution; that a single presiding officer might by his signature, give 
the force of law to a bill which the journal of the body over which he 
presides, and which is kept under the supervision of the whole body, 
shows not to have been voted for by the constitutional number of mem¬ 
bers. The plain provisions of the constitution are not to be thus 
nullified, and the ’ evidence which it requires to be kept under the 
supervision of the collective body must control when a question arises 
as to the due passage of a bill: Fordyce v. Godman, 20 O. S. 1. 

The journals of each house are the best evidence: State, ex rel., v. 
Price, 8 O. C. C. 25, 4 O. C. D. 296. 

Presumptions are every day made, to support the proceedings of the 
courts, far more liberal than would be a presumption that this so-called 
“new bill” was read on three days, and it is difficult to perceive why the 
proceedings of the assembly are not entitled to as much favor as the 
doings of the courts. The latter are as much bound as the former to 
keep a record or journal, and no one will pretend that legislative records 
should be more full and perfect than judicial. If a strict, literal, com¬ 
pliance with every constitutional requirement, however minute, is 
necessary to the validity of a law, and the courts are bound to hold that 
nothing was done but what appears in the legislative journals, it is 
easy to demonstrate that not a single statute enacted since the consti¬ 
tution took effect, can be upheld. It is nowhere stated in the journals 
that any reading of a bill was full and distinct, although the constitu¬ 
tion requires that every reading shall be so. But surely this omission 
does not vitiate every act that has been passed, and make it the duty 
of the courts to hold them null and,void. Everybody, I suppose, would 
admit that the reading being stated, the fullness and distinctness 
thereof may be presumed. If so, why may not three readings, and on 
different days, be presumed, when to do so contradicts nothing in the 
journal, but, on the contrary, is entirely consistent with it? In the 
case before us, the journal of April 13th. expressly stated that the bill 
in question was that day “read the third time” and passed. This 
imports that it had previously been read twice, and as the journal 
shows that it was considered on March 27th, when the amendment, 
called a “new bill,” was reported, and again on the 7th and 12th of 
April, why may it not be presumed that there were two prior readings 
on two of these three days? Miller v. State, 3 O. S. 475. For the effect 
of the journal as evidence, see. also. State, ex rel., v. Moffitt, 5 O. 358. 

For the purpose of determining whether or not a public act of the 
legislature received the two-thirds vote required by Art. IV, § 15, 
of the constitution, courts will take judicial notice of the vote by 
which such act was passed: Backenstoe v. State, 2 O. N. P. (N.S.) 178, 
14 O. D. (N.P.) 580. 

III. MAJORITY VOTE. 

In the absence of all showing to the contrary, a law will be pre¬ 
sumed to have been passed by the requisite number of votes: Steamboat 
V. Millikin, 7 O. S. 383. 

No bill can become a law without receiving the number of votes 
required by the constitution, and if it were found by an inspection of 
the legislative journals, that what purports to be a law upon the statute 
book was not passed by the requisite number of votes, it might possibly 
be the duty of the .courts to treat it as a nullity. But it does not follow 
that an act that was passed by a constitutional majority is invalid, be¬ 
cause in its consideration the assembly did not strictly observe the mode 
of procedure prescribed by the constitution. There are provisions in 
that instrument that are directory in their character, the observance 
of which by the assembly is secured by their sense of duty and official 
oaths, and not by any supervisory power of the courts: Miller v. State, 
3 O. S. 475; Fordyce v. Godman, 20 O. S. 1. 

Under the constitution of Ohio, any enactment of law may be 
repealed by the concurrence of a majority, even though under the con- 



185 


CONSTITUTION OF THE STATE OP OHIO OF 1851 


stitution, the act so repealed was required to be and was passed by the 
concurrence of two-thirds of the members of each house: Backenstoe 
V. Ohio, 2 O. N. P. (N.S.) 178, 14 O. D. (N.P.) 584. 

1 Debates, 163, 229, 230; 2 Debates, 150, 318, 560, 577, 632, 664, 807, 
825, 832, 858, 870. 

Section 10. Any member of either house shall have the 
right to protest against any act, or resolution thereof; and such 
protest, and the reasons therefor, shall, without alteration, com¬ 
mitment, or delay, be entered upon the journal. {See Const. 
1802, Art. I, § 10.) 

See Const. 1802, Art. I, § 10. 

1 Debates, 163, 230, 232; 2 Debates, 150, 214, 318, 560, 633, 664, 807, 
832, 858, 870. 

Section 11. All vacancies which may happen in either 
house shall, for the unexpired term, be filled by election, as shall 
be directed by law. {See Const. 1802, Art. I, § 12.) 

See Const. 1802, Art. I, § 12. 

Cited: Harte v. Bode, 4 O. N. P. 421, 7 O. D. (N.P.) 74. 

1 Debates, 163, 232; 2 Debates, 318, 560, 633, 664, 807, 832, 858, 870. 


Section 12. Senators and representatives, during the ses¬ 
sion of the general assembly, and in going to, and returning 
from the same, shall be privileged from arrest, in all cases, ex¬ 
cept treason, felony, or breach of the peace; and for any speech, 
or debate, in either house, they shall not be questioned elsewhere. 
{See Const. 1802, Art. I, § 13.) 

See Const. 1802, Art. I, § 13. 

A member of the general assembly is exempt from service of sum¬ 
mons in a county other than that of his residence, during sessions of 
assembly and the time usually occupied in traveling to and from such 
sessions, where cause of action occurred ten days before opening of the 
session: Walsh v. Mooney, 13 O. C. C. (N.S.) 90. 

1 Debates, 163, 232; 2 Debates, 318, 560, 633, 664, 807, 832, 858, 870. 


Section 13. The proceedings of both houses shall be pub¬ 
lic, except in cases which, in the opinion of two-thirds of those 
present, require secrecy. {See Const. 1802, Art. I, § 15.) 

' See Const. 1802, Art. I, § 15. 

1 Debates, 163. 232, 233; 2 Debates, 150, 318, 560, 633, 664, 807, 832, 
858, 870. 

Section 14. Neither house shall, without the consent of 
the other, adjourn for more than two days, Sundays excluded; 
nor to any other place than that, in which the two houses 
shall be in session. {See Const. 1802, Art. 1 , § 15.) 

See Const. 1802, Art. I, § 15. 

1 Debates, 163, 233; 2 Debates, 150, 318, 560, 633, 664, 807, 832, 858, 

870. 

In this section are found some of the powers granted to senate or 
house acting separately: State, ex rel., v. Guilbert, 75 O. S. 1. 

Section 15. Bills may originate in either house; but may 
be altered, amended or rejected in the other. {See Const. 1802, 
Art. I, § 16.) 

See Const. 1802, Art. I, § 16. 

1 Debates, 163, 233; 2 Debates, 150, 318, 560, 633, 664, 807, 832, 858, 

870. 

In this section are found some of the powers granted to the senate 
or house acting separately: State, ex rel., v. Guilbert, 75 O, S. 1. 


Art.II, § 10. 


Right of mem¬ 
bers to protest. 


Vacancies in 
either house, how 
filled. 


Privilege of mem¬ 
bers from arrest, 
and of speech. 


When session to 
be public. 


Power of ad¬ 
journment. 


Where bills shall 
originate. 





186 


Art.II, § 16. CONSTITUTION OP THE STATE OP OHIO OP 1851 . 


Bill to be read SECTION 16 . Every bill shall be fully and distinctly read on 

three times; not three different days, unless in case of urgency three-fourths of 
than°one'”subject; the house in which it shall be pending, shall dispense with the 
amlnSdT^veti rule. No bill shall contain more than one subject, which shall be 
by governor. clearly expressed in its title, and no law shall be revived, or 
amended unless the new act contains the entire act revived, or 
the section or sections amended, and the section or sections so 
amended shall be repealed. Every bill passed by the general 
assembly shall, before it becomes a law, be presented to the 
governor for his approval. If he approves, he shall sign it and 
thereupon it shall become a law and be filed with the secretary 
of state. If he does not approve it, he shall return it with his 
objections in writing, to the house in which it originated, which 
shall enter the objections at large upon its journal, and may 
then reconsider the vote on its passage. If three-fifths of the 
members elected to that house vote to repass the bill, it shall be 
sent, with the objections of the governor, to the other house, 
which may also reconsider the vote on its passage. If three- 
fifths of the members elected to that house vote to repass it, it 
shall become a law notwithstanding the objections of the gov¬ 
ernor, except that in no case shall a bill be repassed by a 
smaller vote than is required by the constitution on its original 
passage. In all such cases the vote of each house shall be 
determined by yeas and nays and the names of- the members 
voting for and against the bill shall be entered upon the journal. 
If a bill shall not be returned to the governor within ten days, 
Sundays excepted, after being presented to him, it shall become a 
law in like manner as if he had signed it, unless the general 
assembly by adjournment prevents its_return; in which case, it 
shall become a law unless, within ten days after such adjourn¬ 
ment, it shall be filed by him, with his objections in writing, in 
the office of the secretary of state. The governor may disap¬ 
prove any item or items in any bill making an appropriation of 
money and the item or items, so disapproved, shall be void, 
unless repassed in the manner herein prescribed for the repass¬ 
age of a bill. (As amended September 3, 1912.) 

Vote: “Yes,” 282,412; “No,” 245,186. 

Prior to the amendment given above § 16 had been amended. As 
a,mended November 3, 1903, it read: “Sec. 16. Every bill shall be fully 
and distinctly read three different days, unless in case of urgency three- 
fourths of the house in which it shall be pending, shall dispense with 
the rule. No bill shall contain more than one subject, which shall be 
clearly expressed in its title, and no law shall be revived, or amended 
unless the new act contain the entire act revived, or the section or 
sections amended, and the section or sections so amended shall be 
repealed. 

“Every bill passed by both houses of the general assembly shall, 
before said bill can become a law, be presented to the governor. If he 
approves he shall sign said bill and thereupon said bill shall be law. 
If he object he shall not sign and shall return said bill, together with 
his objection thereto in writing, to the house wherein said bill orig¬ 
inated, which house shall enter at large upon its journal said objection 
and shall proceed to reconsider said bill. If, after said reconsideration, 
at least two-thirds of the members-elect of that house vote to repass 
said bill it shall be sent, together with said objection, to the other 
house, which shall enter at large upon its journal said objection and 
shall proceed to reconsider said bill. If, after said reconsideration, at 
least two-thirds of the members-elect of that house vote to pass said 
bill it shall be law, otherwise it shall not be law. The votes for the 
repassage of said bill shall in each house respectively be no less than 
those given on the original passage. If any bill passed by both houses 
of the general assembly and presented to the governor is not signed 
and is not returned to the house wherein it originated and within ten 




187 


CONSTITUTION OP THE STATE OF OHIO OP 1851 . Art.II, § 16. 


days after being so presented, exclusive of Sunday and the day said 
bill was presented, said bill shall be law as in like manner as if signed, 
unless final adjournment of the general assembly prevents such return, 
in which case shall be law, unless objected to by the governor and 
filed, together with his objection thereto in writing, by him in the office 
of the secretary of state within the prescribed ten days; and the secre¬ 
tary of state shall at once make public said fact and shall return said 
bill, together with said objection, upon the opening of the next fol¬ 
lowing session of the general assembly, to the house wherein said bill 
originated, where it shall be treated in like manner as if returned 
within the prescribed ten days. 

“If any bill passed by both houses of the general assembly and 
presented to the governor contains two or more sections, or two or 
more items of appropriation of money, he may object to one or more 
of said sections or to one or more of said items of appropriation of 
money, and approve the other portion of said bill, in which case said 
approved portion may be signed and then shall be law; and such sec¬ 
tion or sections, item or items o.f appropriation of money objected to 
shall be returned within the time and in the manner prescribed for, 
and shall be separately reconsidered as in the case of, a whole bill; 
but if final adjournment of the general assembly prevents such return 
the governor shall file said section or sections, item or items of appro¬ 
priation of money, together with his objection thereto in writing, with 
the secretary of the state as in the case of a whole bill, and the secre¬ 
tary of state shall then make public said fact, but shall not further 
act as in the case of a whole bill. [As amended November 3, 1903; 
95 V. 962.]” 

See Const. 1802, Art. I, § 17. 

The vote adopting this amendment was “Yes,” 458,681; “No,” 338,317. 

For a proposed amendment of this section, see 98 v. 412. 

Original § 16 read as follows: “Sec. 16. [Bills to be read three 
times; not to contain more than one subject; acts revived or amended.] 
Every bill shall be fully and distinctly read, on three different days, 
unless, in case of urgency, three-fourths of the house, in which it shall 
be pending, shall dispense with this rule. No bill shall contain more 
than one subject, which shall be clearly expressed in its title; and no 
law shall be revived, or amended, unless the new act contain the entire 
act revived, or the section or sections amended; and the section or 
sections so amended, shall be repealed.” 


I. Applied, elted, construed, re¬ 
ferred to, etc. 

II. Bill to be read three times. 

III. Bill to contain no more than 
one subject which should 
be elearly expressed in its 
title. 

A. Directory. 

B. Compliance with provis¬ 

ions presumed. 


C. Title as aiding in con¬ 

struction. 

D. Act containing but one 

subject. 

IV. Ijaw revived or amended. 

V. Amended section to be re¬ 
pealed. 

VI. Presentation to governor. 


I. APPLIED, CITED, CONSTRUED, REFERRED TO, ETC. 

'Canalboat Housatonic v. Salt Co., 7 O. S. 261; State, ex rel., 
V. Davis, 23 O. S. 434; Bloom v. Xenia, 32 O. S. 461; State, ex rel., v. 
Smith, 44 O. S. 364; Brady v. State, 59 O. S. 555; State, ex rel., v. Coon, 
4 O. C. C. (N.S.) 560, 16 O. C. D. 241; Murray v. La Follette, 12 O. C. G. 
iN.S.) 113, 21 O. C. D. 247; State v. Gardner, 2 O N. P. 405; 4 O. D. 
(N.P.) 34; Cincinnati v. Ferguson, 8 O. N. P. 361, 11 O. D. (N.P.) 101 
[affirmed, without report, Ferguson v. Cincinnati, 65 O. S. 557]; Hall 
V. Siegrist, 13 O. D. (N.P.) 46; State v. Monheim, 14 O. D. (N.P.) 474. 


II. BILL TO BE READ THREE TIMES. 

This clause does not require that every amendment to a bill shall 
be read three times. It is directory only: Miller v. State, 3 O. S. 475. 


III. BIIAi TO CONTAIN NO MORE THAN ONE SUBJECT WHICH 
SHOULD BE CLEARLY EXPRESSED IN ITS TITLE. 

A. Directory. This provision was incorporated into the consti¬ 
tution for the purpose of making it a permanent rule of the houses, 
and to operate only on bills in their progress through the general 
assembly. It is directory only, and the supervision of its observance 
must be left to the general assembly: Pirn v. Nicholson, 6 O. S. 176. 

The provision that a bill shall contain no more than one subject 
is directory only: Seeley v. Thomas, 31 O. S. 301; State, ex rel., v. 

Mulhern, 74 O. S. 363; Weil v. State, 3 O. C. C. 657, 2 O. C. D. 382 

[affirmed, Weil v. State, 46 O. S..450]; Jones v. Commissioners. 2 O. C. 

C. (N.S.) 14, 15 O. C. D. 510; State, ex rel., v. Covington, 29 O. S. 102; 

see, also. Bloom v. Xenia, 32 O. S. 461. 



188 


Art.II, § 16. CONSTITUTION OP THE STATE OP OHIO OP 1851. 


n. Coniplianoe with provi.siouM pre.sumed. While this clause is 
directory only it will be presumed that the legislature complied there¬ 
with: Newton v. Toledo, 18 O. C. C. 756, 8 O. C. D. 607 [affirmed, with¬ 
out report, Toledo v. Newton, 52 O. S. 649], 

Every reasonable intendment is to be made in favor of the pro¬ 
ceedings of the legislature. It is not to be presumed that the 

assembly, or either house of it, has violated the constitution. When, 

therefore, it appears by the journals, that a bill was amended by strik¬ 
ing out all after the enacting clause, and inserting a “new bill,” 
so-called, it can not be presumed that the matter inserted was upon a 
different subject from that stricken out, especially when the matter 
inserted is consistent with the title borne by the bill before such 
amendment. This is the more obvious since the constitution provides 
that “no bill shall contain more than one subject, which shall be 
clearly expressed in its title.” "Nor does the fact that the inserted 
matter is called a “new bill” prove that it was not an amendment: 
Miller v. State, 3 O. S. 475. 

C. Title as aiding in construction. A court may look to the title 

of a bill to determine the intention and object of the legislature in 
enacting the law: Bronson v. Oberlin, 41 O. S. 476; State, ex rel., v. 

Kinney, 20 O. C. C. 325, 11 O. C. D. 261; Murray v. La Follette, 12 O. C. C. 

(N.S.) 113, 21 O. C. D. 247; State, ex rel., v. Ross, 4 O. N. P. (N.S.) 
377, 16 O. D. (N.P.) 704. 

D. Act containing but one subject. The act to revise and con¬ 
solidate the general statutes of the state embodied in the Revised 
Statutes is not void, as being in conflict with Art. II, § 16, of the con¬ 
stitution: Oshe V. State, 37 O. S. 494. 

But a bill for the regulation of the health officers and other 
police officers of a city, contains but one subject within the meaning 
of this section: Seeley v. Thomas, 31 O. S. 301; State, ex rel., v. Cov¬ 
ington, 29 O. S. 102. 

The act passed May 24, 1885 (82 v. 238), entitled, “An act to regu¬ 
late conditional rates and sales of personal property (G. C. §§ 8566 to 
8570), etc., is not in conflict with Art. II, § 16, of the constitution: 
Weil V. State, 46 O. S. 450 [affirming Weil v. State, 3 O. C. C. 657, 
2 O. C. D. 382]. 

IV. LAW REVIVED OR AMENDED. 

“We understand the main objection to be, that in the new act, the 
sections of the prior statutes, which it is supposed to modify or amend, 
are not set out and recited in full. We think the phraseolo.gy, reason¬ 
ably construed, does not require this to be done. As we understand 
this clause of the constitution, it requires, in the case of an amendment 
of a section or sections of a prior statute, that the new act shall 
contain, not the section or sections which it proposes to amend, but 
the section or sections in full, as it purports to amend them. That 
is, it requires, not a recital of the old section, but a full statement, in 
terms, of the new one. Such has been the almost uniform legislative 
construction given to this clause; and a different judicial construction 
would invalidate nine-tenths of the amendatory acts of state legisla¬ 
tion passed since 1851. Whatever inference might be drawn from the 
debates in the constitutional convention, every provision of the con¬ 
stitution should be construed agreeably to the import of its terms, 
as they may be fairly presumed to have been understood by the 
people whose ratification alone gave validity to the whole instrument. 
This provision was intended, mainly, to prevent improvident legisla¬ 
tion, and with that view, as well as for the purpose of making all 
acts, when amended, intelligible, without an examination of the 
statute as it stood prior to the amendment, it requires every section 
which is intended to supersede a former one to be fully set out. No 
amendments are. to be made by directing specified words or clauses 
to be stricken from, or inserted in, a section of a prior statute which 
m,ay be referred to; but the new act must contain the section as 
amended”: Lehman v. McBride, 15 O. S. 573. 

A statute does not conflict with this section which is not an amend¬ 
ment of a particular statute, but is itself a distinct and independent 
statute, and is an amendment only as being an amendment of the 
law generally: Rairden v. Holden, 15 O. S. 207, 

The act of February 21, 1867 (64 v. 18), authorizing building associa¬ 
tions to become incorporated, as provided in certain sections of the “act 
to provide for the creation and regulation of incorporated companies, 
passed May 1, 1852,” has reference to the sections named which were 
then in force, and not the original sections which had been repealed: 
Building Association v. Gallagher, 25 O. S. 208, 

V. amended section to re repealed. 

This clause is directory only to the general assembly, and was not 
intended to abrogate the long established rule as to repeals by implica¬ 
tion: Lehman v. MdBride, 15 O. S. 573; Chillicothe v. Fuel Co., 8 O N P 
88, 11 O. D, (N.P.) 24. 



189 


CONSTITUTION OF THE STATE OP OHIO OP 1851. Art.II, § 17. 


The rule that repeals by implication are not favored, is applicable 
to the inquiry whether any particular enactment ceased to be in force 
on account of repugnancy to the new constitution: State, ex, rel., v. 

Dudley, 1 O. S. 437 [approved, Cass v. Dillon, 2 O. S. 607], 

Repeals by implication are not favored: Brown v. Van Wert, 4 O. 

C. C. 407, 2 O. C. D. 622 [reversed on other grounds. Van Wert v. Brown, 

47 O. S. 477]. 

A repealing clause of an unconstitutional statute is itself invalid, 
unless it appears formatively that the legislature intended such repeal¬ 
ing clause to take effect irrespective of the validity of the remaining 
provisions of the statute: State v. Monheim, 14 O. D. (N.P.) 474; Whit¬ 
ney V. Gill, 15 O. C. C. 648, 8 O. C. D. 450. 

VI. PIIIISEIVTATION TO GOVERNOR. 

An entry in a record which is kept in the office of the governor 
pursuant to a requirement of law and with his acquiescence used to per¬ 
petuate evidence of the presentation to him of bills, which have been 
passed by both houses of the general assembly, the entry being made 
by a subordinate of the governor in the discharge of duties prescribed 
by him and showing the presentation of an identified bill on a day 
named, is competent and sufficient to prove such presentation: Wrede 
V. Richardson, 77 O. S. 182 [affirming Wrede v. Richardson, 5 O. N. P. 

(N.S.) 127, 18 O. D. (N.P.) 793, 1 Hosea, 494, 5 O. D. R. 405]. 

The enactment of an officially promulgated statute can not be 
impeached by parol evidence: Wrede v. Richardson, 77 O. S. 182 [affirm¬ 
ing Wrede v. Richardson, 5 O. N. P. (N.S.) 127, 18 O. D. (N.P.) 793, 

1 Hosea, 494, 5 O. D. R. 405]. 

The governor not having relinquished the duties of his office in 
view of a disability recognized by him, and there being no authorized 
procedure to ascertain that a disability has intervened, it is not com¬ 
petent upon an issue as to the valid enactment of a statute to show 
mat upon the day of its presentation to him, and for ten days there¬ 
after, he was, by reason of illness, disabled to receive or consider it so 
as to give effect to the provision of the fifteenth section of the third 
article of the constitution that in case of the disability of the governor, 
the duties of his office shall devolve upon the lieutenant-governor: 

Wrede v. Richardson, 77 O. S. 182 [affirming Wrede v. Richardson, 

5 O. N. P. (N.S.) 127, 18 O. D. (N.P.) 793, 1 Hosea, 494, 5 O. L. R. 405]. 

1 Debates, 163, 232, 297; 2 Debates, 150, 151, 318, 560, 561, 633, 664, 

S07, 825, 832, 858, 870. 

Section 17. The presiding officer of each house shall To be signed 

sign, publicly in the presence of the house over which he 
presides, while the same is in session, and capable of transact¬ 
ing business, all bills and joint resolutions passed by the gen¬ 
eral assembly. (See Const. 1802 , Art. I, § 17 .) 

See Const. 1802, Art. I, § 17. 

Cited: State, ex rel., v. Jones, 22 O. C. C. 682, 11 O. C. D. 496 
[reversed in Platt v. Craig, 66 O. S. 75]. 

In this section are found some of the powers granted to the 

senate or house, acting separately: State, ex rel., v. Guilbert, 75 O. S. 1. 

Where the journal of each house of the general assembly shows 

that a law received the concurrence of the number of members re¬ 

quired by the constitution for its adoption, and that it was publicly 
signed in the presence of each house by its presiding officer, as 
required by Art. 11, § 17, of the constitution, its authenticity can not 
be impeached by parol evidence that one or more of the members in 
either house, recorded as concurring in its adoption, had, prior thereto, 
been seated, upon the determination of a contested election, by less 
than a constitutional quorum, although the concurrence of such mem¬ 
ber, or members, was necessary to the number of votes required by 
the’ constitution for the passage of the law: State, ex rel., v. Smith, 

44 O. S. 348. 

A bill passed by the general assembly, but not authenticated in 
accordance with the provisions hereof, does not become a law: State 
V. Kiesewetter, 45 O. S. 254. 

Under the constitution of this state and the joint rules and prac¬ 
tice of the general assembly, a bill which provides that it shall be in 
force from and after its passage, becomes a law and takes effect w'hen 
it has received the requisite number of votes of the members elected 
to each house, and is signed by the presiding officer of each house: 

State, ex rel., v. O’Brien, 47 O. S. 464. 

1 Debates, 293; 2 Debates, 182, 318, 634, 664, 807, 832, 858, 870, 



190 


Art.II, §18. CONSTITUTION OF THE STATE OF OHIO OF 1851. 


Style of laws. SECTION 18. The Style of the laws of this state shall be, 

“Be it enacted by the General Assembly of the State of Ohio” 
{See Const. 1802, Art. I, § 18.) 

See Const. 1802, Art. I, § 18. 

For proposed renumbering' of this section and new § 18, see 98 v. 412. 

The statute law of the state can neither be repealed nor amended 
by a joint resolution of the general assembly; therefore, the joint 
resolution (92 Laws, 787) submitting the question of calling a con¬ 
stitutional convention to the electors of the state was held invalid: 
State, ex rel., v. Kinney, 56 O. S. 721. 

1 Debates, 163, 171, 233; 2 Debates, 318, 561, 633, 664, 807, 832, 
858, 870. 

v 

Exclusion from SECTION 19. No Senator or representative shall, during the 

term for which he shall have been elected, or for one year there¬ 
after, be appointed to any civil office under this state, which 
shall be created or the emoluments of which shall have been in¬ 
creased, during the term for which he shall have been elected. 
{See Const. 1802, Art. I, § 20.) 

See Const. 1802, Art. I, § 20. 

For proposed renumbering of this section, see 98 v. 412. 

1 Debates, 163, 234-236; 2 Debates, 151, 318, 562, 563, 577, 633, 664, 
807, S32, 858, 870. 


Term of office, SECTION 20. The general assembly, in cases not provided 

Jf^office?s^?tf^*°” for in this constitution, shall fix the term of office and the com- 
certain cases. pensation of all officers ; but no change therein shall affect the 
salary of any officer during his existing term, unless the office 
be abolished. 

For proposed renumbering of this section, see 98 v. 412. 


I. Cited. IV. Salary. 

II. Term and compensation. A. Change in salary. 

III. Who are officers. B. Meaning of salary. 

I. CITED. 

Pearson v. Stephens, 13 O. C. C. 49, 7 O. C. D. 122 [reversed, Pear¬ 
son V. Stephens, 56 O. S. 126]; Ward v. Board of Education, 21 O. C. C. 
699, 11 O. C. D. 671; State, ex rel., v. Goughian, 6 O. N. P. (N.S.) 101, 
18 O. D. (N.P.) 289. 

II. TERM AND COMPENSATION. 

The case of a clerk of the court holding his office by appointment 
to fill a vacancy is one of the cases in which the constitution has not 
fixed the term of office, but has left that to be done by the legislature: 
State, ex rel., v. Neibling, 6 O. S. 40. 

This section imposes no restraint on the power of the general 
assembly to extend the tenure of an officer beyond his term, and until 
his successor is qualified, in a case where the duration of such tenure 
Is not limited by the constitution: State, ex rel., v. Howe, 25 O. S. 588. 

III. WHO ARE OFFICERS. 

The act of May 4, 1869 (66 O. L. 80), authorizing the court to 
appoint trustees to carry out the provisions of the act and to fix their 
compensation, is not in conflict with this provision. The trustees for 
whose appointment it provides are not public officers within the mean¬ 
ing of this provision: Walker v. Cincinnati. 21 O. S. 14. 

This clause can not be regarded as comprehending more than such 
officers as may be created to aid in the permanent administration of 
the government. It can not include all the agencies which the general 
assembly may authorize municipal and other corporations to employ 
for local and temporary purposes: Walker v. Cincinnati, 21 O. R. 14. 

The county surveyor is an officer within the meaning of this 
section: State, ex rel., v. Staley, 5 O. C. C. 602, 3 O. C. D. 294. 

The services performed by the officers under G. C. § 5594 are with¬ 
out the scope of their official duties as such, and are not so “incident” 
or “germane” to the regular duties of the offices to which they have 
been elected as to make the provision for compensation in contraven¬ 
tion of this section: Lewis v. State, ex rel., 21 O. C. C. 410, 11 O. C. D. 



191 


CONSTITUTION OP THE STATE OF OHIO OF 1851 . 


647 [affirming State, ex rel., v. Lewis, 8 O. N. P. 84, 10 O, D. (N.P.) 
537]. 

An officer in the constitutional sense is one who is elected or 
appointed to the state office * * * hjg deputy assistants and em¬ 

ployes are not “officers” within the meaning of the constitution, and 
the act changing the compensation of all officers from the fee system 
to a fixed salary is not unconstitutional as in violation of Art. II, § 20, 
which provides that the compensation of an officer shall not be changed 
during his term: Theobald v. State, ex rel., 10 O. C. C. (N.S.) 175, 20 
O. C. D. 414. 

The term “officer,” as used in this section, does not refer to such 
officer as members of a board of school examiners or to officers of a 
municipal corporation, such as mayor, marshal, etc., but to those 
created, and whose salaries are fixed by the general assembly: State, 
ex rel., v. Board of Education, 21 O. C. C. 785, 12 O. C. D. 333. 

General Code § 5580, et seq., and § 5595, et seq., providing for 
compensation for county commissioners for services in county boards 
of equalization, are not inconsistent with this section: State, ex rel., 
V. Goughian, 6 O. N. P. (N.S.) 101, 18 O. D. (N.P.) 289. 

The duty enjoined by this section in regard to fixing the com¬ 
pensation of officers, does not require the general assembly to fix the 
sum or amount which each officer is* to receive, but only requires that 
it shall prescribe or fix the rule by which such compensation is to be 
determined: Cricket v. State, 18 O. S. 9. 

The act of April 25, 1904 (97 O. L. 313, 314). entitled, “An act fixing 

the salaries of the county surveyors in various counties of the state,” 
is repugnant to § 20, Art. II, of the constitution of Ohio, because the 
power conferred and the duty imposed by said act upon the judges of 

the court of common pleas to fix the salaries or compensation of county 

surveyors is purely a legislative power and duty and can not be dele¬ 
gated. Said act is therefore unconstitutional and void: State, ex rel., 
V. Rogers, 71 O. S. 203. 

This section authorizes the general assembly to fix the compensa¬ 
tion of all officers in cases not provided for by the constitution: State, 
ex rel., v. Commissioners, 13 O D. (N.P.) 97. 

IV. SALARY. 

A. Change in salary. The increase of pay of a public officer 
during the term for which he is elected is unconstitutional: State, 
ex rel., v. Raine, 49 O. S. 580. 

The constitutional inhibition against the increase or diminution of 
the salary of an officer during his existing term does not render it 
incompetent for him to accept compensation, fixed by the general 
assembly after he entered upon the discharge of the duties of his 
office and before the expiration of his term, where no compensation 
was theretofore provided: State, ex rel., v. Carlisle, 3 O. N. P. (N.S.) 
544, 16 O. D. (N.P.) 263. 

A provision for paying county officers as members of the county 
board of equalization (see G. C. § 5597) does not violate this pro¬ 
vision: State, ex rel., v. Coughlan, 6 O. N. P. (N.S.) 101, 18 O. D. (N.P.) 
289. 

B. Meaning of salary. It is manifest from the change of expres¬ 
sion in the two clauses of the section that the word “salary” was not 
used in a general sense, embracing any compensation fixed for an 
officer, but in its limited sense of an annual or periodical payment for 
services—a payment dependent upon the time, and not on the amount 
of the service rendered. Where the compensation is to be ascertained 
by a percentage on the amount of money received and disbursed, it 
is not a salary within the meaning of this section: Thompson v. 
Phillips, 12 O. S. 617. 

The pay of a member of the board of legislation, fixed by a pro¬ 
vision that “each member of the board who is present during the 
entire session of any regular meeting, and not otherwise, shall be 
entitled to receive five dollars for his attendance,” is not “salary” 
within the meaning of this section, and such an officer’s salary may 
be increased during his term: Gobrecht v. Cincinnati, 51 O. S. 68. 

Compensation by means of fees received for services rendered Is 
not salary within the meaning of this section; and the statute chang¬ 
ing such compensation from fees to salary (see G. C. § 2977, et seq.), 
is not rendered invalid by this provision: Theobald v. State, ex rel., 
10 O. C. C. (N.S.) 175, 20 O. C. D. 414. 

The compensation of county commissioners provided by G. C. 
§ 3001, being determined on the basis of the aggregate amount on the 
tax duplicate, is not a salary within the purview of this section: 
State, ex rel., v, Carlisle, 3 O. N. P. (N.S.) 544, 16 O. D. (N.P.) 263. 

The compensation originally provided for auditors was not a 
salary within the meaning of this provision: State, ex rel., v. Com¬ 
missioners, 13 O. D. (N.P.) 97. 


Art.II, § 20. 



192 


Art.II, § 21. 


Contested elec¬ 
tions. 


Appropriations. 


CONSTITUTION OF THE STATE OP OHIO OF 1851 . 


1 Debates, 163, 233, 234; 2 Debates, 151, 318, 661, 562, 577, 633, 663, 
664, 807, 832, 858, 870. 

Section 21. The general assembly shall determine, by law, 
before what authority, and in what manner, the trial of contested 
elections shall be conducted. 

For proposed renumbering of this section, see 98 v. 412. 

Cited: State, ex rel., v. Hawkins, 44 O. S. 98; State, ex rel., v. 
O’Brien, 47 O. S. 464. 

Referred to in citing State, ex rel., v. Berry, 14 O. S. 315; State, 
ex rel., v. Dalton, 1 O. C. C. 161, 1 O. C. D. 82; Stearns v. Taylor, 1 
O. N. P. 23, 1 O. D. (N.P.) 136. ^ 

A specific mode of contesting elections in this state having been 
provided by statute, according to this requirement of the constitu¬ 
tion, that mode alone can be resorted to in exclusion of the common 
law mode of inquiry by proceedings in quo warranto. The statute 
which gives this special remedy and prescribes the mode of its exer¬ 
cise binds the state, as well as individuals: State, ex rel., v. Marlow, 
15 O. S. 114 [referred to in State, ex rel., v. Harmon, 31 O. S. 250; 
State, ex rel., v. McLain, 58 O. S. 313; Holbrock v. Smedley, 79 O. S. 
391]. 

The duty of making such provision is solemnly enjoined upon the 
legislature by the constitution: Dalton v. State, ex rel., 43 O. S. 652. 

Under this section, the power conferred by G. C. § 4237 upon the 
council of a municipal corporation to determine the election of its own 
members is exclusive and can not be determined b 3 '^ a proceeding in 
quo warranto or in any other mode than as provided in this*section: 
State, ex rel., v. Berry, 47 O. S. 232. 

A legislature has powder to make provision for the contesting of 
all elections: Fike v. State, 4 O. C. C. (N.S.) 81, 15 O. C. D. 554. 

If no provision by statute is made for a contest of election of 
township ofiicers, quo w^arranto lies to contest such election: State, 
ex rel., v. Conser, 5 O. C. C. (N.S.) 119, 14 O. C. D. 270. 

Where there are conflicting certificates signed by the same officers 
of election, parol evidence may be received to impeach the accuracy 
of the tally sheets and to explain errors therein or in the certificates 
relating thereto: Smith v. Rauh, 14 O. C. C. (N.S.) 33 [affirmed. In re 
Contest, 84 O. S. 467]. 

In a contest of election under the Rose county option law, the 
court may go behind the face of the returns and inquire into the 
facts and correct mistakes: Smith v. Rauh, 14 O. G. C. (N.S.) 33 

[affirmed. In re Contest, 84 O. S. 467]. 

2 Debates, 228, 318, 563, 564, 577, 633, 664, 807, 832, 858, 870. 

vSection 22. No money shall be drawn from the treasury, 
except in pursuance of a specific appropriation, made by law; 
and no appropriation shall be made for a longer period than two 
years. {See Const, 1802, Art, I, § 21.) 

For proposed renumbering of this section, see 98 v. 412. 

See Const. 1802, Art. I, § 21. 

Cited: State, ex rel., v. Board of Public Works, 36 O. S. 409. 

No officer of the state can enter into any contract except in cases 
specified in the constitution, whereby the general assembly will, two 
years after, be bound to make appropriations, either for a particular 
object or a fixed amount; the power and the discretion, intact, to make 
appropriations, in general, devolving on each biennial general assem¬ 
bly and for the period of two years: State v. Medbery, 7 O. S. 522. 

The sole power of making appropriations of the public revenue is 
vested in the general assembly. It is the setting apart and appro¬ 
priating by law a specific amount of the revenue for the payment of 
liabilities which may accrue or have accrued. No claim against the 
state can be paid, no matter how’- just or how long it may have re¬ 
mained overdue, unless there has been a specific appropriation made 
by law to meet it. By virtue of this power of appropriation, the 
general assembly exercise their discretion in determining, not only 
what claims against or debts of the state shall be paid, but the amount 
of expenses which may be incurred. If they authorize expenses or 
debts to be incurred, without an appropriation to pay them, and the 
expenses are incurred, those expenses create a debt against the state, 
and it must remain such until payment under an appropriation after¬ 
ward made. The general assembly usually, however, provide for the 
current expenses for a period not exceeding two years out of the 
incoming revenues, by making appropriations of a sufficient amount 
of money to pay the expenses during that period, and provide by law 



193 


CONSTITUTION OF THE STATE OF OHIO OF 1851 


for the raising- of revenue sufficient to meet the appropriations. The 
discretion of each general assembly for the period of two years in 
respect to the amount of expenditures, except in some special cases 
relating to salaries, is without limit and without control; but each 
must provide revenue and set apart a sufficient amount by a law 
operative within the same two years to pay all expenses and claims: 
State V. Medbery, 7 O. S. 522. 

Neither branch of the general assembly can alone appropriate 
money from the treasury; but where a fund is provided by law for the 
contingent expenses of either branch, the disbursement of the fund for 
such purpose is subject to the control of such branch. Hence, where a 
sum is allowed by the house of representatives for cleaning the hall 
occupied by that body, after its adjournment, the party rendering the 
service, in pursuance of the resolution, is entitled to be paid therefor 
out of the contingent fund previously paid for the use of the house: 
State, ex rel., v. Oglevee, 36 O. S. 324. 

1 Debates, 163, 237, 297; 2 Debates, 151, 318, 564, 633, 664, 807, 832, 
858, 870. 

Section 23. The house of representatives shall have the 
sole power of impeachment, but a majority of the members 
elected must concur therein. Impeachments shall be tried by 
the senate; and the senators, when sitting for that purpose, shall 
be upon oath or affirmation to do justice according to law and 
evidence. No person shall be convicted without the concurrence 
of two-thirds of the senators. {See Const. 1802, Art. 1 , § 23.) 

For proposed renumbering of this section, see 98 v. 412. 

See Const. 1802, Art. I, § 23. 

Cited: State, ex rel., v. Hawkins, 44 O. S. 98. 

In this section are found some of the powers granted to the senate 
or house acting separately: State, ex rel., v. Guilbert, 75 O. S. 1. 

1 Debates, 163, 298; 2 Debates, 151, 318, 566, 633, 664, 807, 832, 858, 

870. 


Section 24. The governor, judges, and all state officers, 
may be impeached for any misdemeanor in office; but judgment 
shall not extend further than removal from office, and disqual¬ 
ification to hold any office under the authority of this state. The 
party impeached, whether convicted or not, shall be liable to 
indictment, trial, and judgment, according to law. {See Const. 
1802, Art. /, § 24.) 

For proposed renumbering of this section, see 98 v. 412. 

See Const. 1802, Art. I, § 24. 

Referred to: Predigested Food Co. v. McNeal, 1 O. N. P. 266. 

1 Debates, 163, 239-241; 2 Debates, 151, 3l8, 566, 589, 633, 664, 807, 
832, 858, 870. 

Section 25. All regular sessions of the general assembly 
shall commence on the first Monday of January, biennially. The 
first session, under this constitution, shall commence on the first 
Monday of January, one thousand eight hundred and fifty-two. 
{See Const. *1802, Art. /, § 25.) 

For proposed renumbering of this section, see 98 v. 412, 

See Const, 1802, Art. I, § 25. 

Cited: State, ex rel., v. Maxfleld, 9 O. C. C. 26, 6 O. C. D. 11. 

The doctrine relating to repeals and amendments by implication 
applies to constitutions and statutes, and it requires that earlier ex¬ 
pressions yield when it is necessary to give effect to the latest 
expression of the intention of those whose intention is entitled to 
control: State, ex rel., v. Creamer, 83 O. S. 412. 

The express provisions of the constitution of the state establish 
such relation between the election of state officers and the convening 
of the general assembly that since the seventeenth article, adopted in 
1905, has expressly changed the date of the election from November 
of the odd numbered years to the same month of the even numbered 
years, the provision for the convening of the regular session of the 


Art.II, § 23. 


Impeachments; 
how instituted 
and conducted, 


Who liable to 
impeachment, and 
punishment. 


When session to 
commence. 




194 


Art.II, § 26. 


What laws to 
have a uniform 
operation. 


CONSTITUTION OP THE STATE OP OHIO OP 1851 . 


general assembly, then elected, must be regarded as changed by impli¬ 
cation from the' first Monday of January in the even numbered years 
to the first Monday of the same month in the odd numbered years: 
State, ex rel., v. Creamer, 83 O. S. 412. 

1 Debates, 163, 241-257; 2 Debates, 151-158, 161-164, 318, 566, 567, 
581, 583, 633, 664, 807, 832, 858, 870. 

Section 26. All laws, of a general nature, shall have a 
uniform operation throughout the state; nor, shall any act, ex¬ 
cept such as relates to public schools, be passed, to take eflfect 
upon the approval of any other authority than the general as¬ 
sembly, except, as otherwise^provided in this constitution. 

For a proposed renumbering of this section, see 98 v. 412. 


I. Applied, cited, eon.strued, re¬ 
ferred to, etc. 

II. Laws of general nature to be 
of uniform operation. 

III. Specific illiistration.s. 

A. Municipal corporations. 

B. Counties. 

C. Townships. 

D. Schools. 

E. Roads. 

F. Elections. 

G. Intoxicating liquors. 


H. Motor vehicles. 

I. Fish and game laws. 

J. Dicense. 

K. Fellow servant law. 

li. Building and loan asso¬ 
ciations. 

M. Penal statutes. 

N. Jury. 

O. Justice of the peace. 

P. Local laws. 

IV. Approval of other authority. 


I. APPLIED, CITED, CONSTRUED, REFERRED TO, ETC. 

Peck V. Weddell, 17 O. S. 271; Ex parte Van Hagen, 25 O. S. 426; 
State, ex rel., v. Mitchell, 31 O. S. 592; Springer v. Avondale, 35 O. S. 
620; State v. Pugh, 43 O. S. 98; State, ex rel., v. Brennan, 49 O. S. 33; 
Railway v. Railway, 50 O. S. 603; State, ex rel., v. McCarty, 52 O. S. 363; 
State, ex rel., v. Guilbert, 56 O. S. 575; State, ex rel., v. Brown, 60 O. S. 
462; Cincinnati v. Trustees, 66 O. S. 440; State, ex rel., v. Jones, 66 O. S. 
453; Shoemaker v. Cincinnati, 68 O. S. 603; Thomas v. State, ex rel., 76 
O. S. 341; Davies v. Investment Co., 76 O. S. 407; State, ex rel., v. The 

Board of Deputy State Supervisors of Elections, 80 O. S. 471; State, 

ex rel., v. Price, 8 O. C. C. 25, 4 O. C. D. 296; Longworth v. Cincinnati, 
17 O. C. C. 15, 9 O. C. D. 744 [affirmed, without report, Cincinnati v. 
Longworth, 61 O. S. 659]; Mykrantz v. Building Loan Association, 
19 O. C. C. 51, 10 O. C. D. 250; State, ex rel., v. Railway, 1 O. C, C. 
(N.S.) 145, 14 O. C. D. 609 [affirmed, without report. State, ex rel., v. 
Railway, 73 O. S. 363]; Jones v. Commissioners, 2 O. C. C. (N.S.) 14, 
15 O. C. D. 510; Carr v. Summit County, 2 O. C. C. (N.S.) 449, 14 

O. C. D. 161; Price v. Toledo, 4 O. C. C. (N.S.) 57, 15 O. C. D. 617; 

Hattersly v. Waterville, 4 O. C. C. (N.S.) 242, 16 O. C. D. 226 [affirmed, 
without report, Hattersley v. Waterville, 74 O. S. 466]; State, ex rel., 

V. Railway, 1 O. C. C. (N.S.) 145, 14 O. C. D. 609 [affirmed, without 
report. State, ex rel., v. Railway, 73 O. S. 363]; Price v. Toledo, 4 
O C. C. (N.S.) 57, 15 O. C. D. 617; State, ex rel., v. Tooker, 5 O. N. P. 

122, 6 O. D. (N.P.) 464; Ludlow v. Lewis, 6 O. N. P. 513, 9 O. D. (N.P.) 

600; French v. Shirley, 7 O. N. P. 26, 9 O. D. (N.P.) 181; Bank v. 
Trustees, 13 O. D. (N.P.) 472; Jiha v. Barry, 3 O. N. P. (N.S.) 65, 16 
O. D. (N.P.) 33; State, ex rel., v. Taylor, 3 O. N. P. (N.S.) 505, 16 O. D. 
(N.P.) 66; Burkhardt v. Cincinnati, 6 O. N. P. (N.S.) 17, 18 O. D. (N.P.) 
450; Board of Education v. Sawyer, 7 O. N. P. (N.S.) 401, 19 O. D. 
(N.P.) 1; Smith v. Telegraph Co., 7 O. N. P. (N.S.) 609; State, ex rel., 

V. Wright, 9 O. N. P. (N.S.) 321; Rennehoff v. Mansfield, 2 O. D. (N.P.) 

404; In re Brown, 9 O. D. (N.P.) 810; Horstman v. Railway, 12 O. D. 
(N.P.) 762; State, ex rel., v. Commissioners, 13 O. D. (N.P.) 97; Board 
of Education v. Sawyer, 7 O. N. P. (N.S.) 401, 19 O. D. (N.P.) 1; Smith 
V. Telegraph Co., 19 O. D. (N.P.) 537; State, ex rel., v. Wright, 20 O. D. 
(N.P.) 231; Shepard v. Barron, 194 U. S. 553, 3 O. L. R. 327, 14 O. F. D. 
417; Loeb v. Trustees, 179 U. S. 472; Cincinnati v. Miller, 11 Dec. Rep. 
788, 29 Bull. 364; Investment Co. v. Youngstown, 68 Fed. 452, 9 O. F. D. 

13 [cited incorrectly as § 28 in 9 O. F. D. 13]; Greenville v. Demorest, 

14 O. C. C. (N.S.) 113, 22 O. C. D. 544. 

II. LAWS OF GENERAL NATURE TO BE OF UNIFORM OPER¬ 
ATION. 

The act of March 7, 1835, to amend the act entitled, “an act for the 
more effectual punishment of certain offenses in the county of Ham¬ 
ilton” (Swan & Critchfield’s Stat. 444), is not so in conflict with § 26, 
Art. II, of the present constitution of the state, as to be thereby abro¬ 
gated. That section had, at the adoption of the constitution, only a 
prospective and not a retrospective effect upon legislation; Allbyer 
V. State. 10 O. S. 588, 




195 


CONSTITUTION OP THE STATE OP OHIO OP 1851 . 


This section of the constitution is mandatory and it renders invalid 
a statute in conflict therewith: Falk, Ex parte, 42 O. S. 638; Slatmyer 
V. Springborn, 5 O. C. C. (N.S.) 89, 16 O. C. D. 100. 

Under this section the constitutionality of an act is determined by 
the nature of its subject-matter, its operation and.effect, and not alone 
by its form: Hixson v. Burson, 54 O. S. 470. 

A law of a general nature, which is in full force in ever 3 ’' part of 
the state, complies with this section, requiring laws of a general 
nature to have a uniform operation throughout the state: State, 
ex rel., v. Ferris, 53 O. S. 314. 

Whenever a law of a general nature, having a uniform operation 
throughout the state, can be made fullj’- to cover and provide for any 
given subject-matter, the legislation as to such subject-matter must 
be by general laws, and local or special laws can not be constitu¬ 
tionally enacted as to such subject-matter: State, ex rel., v. Spellmire, 
67 O. S. 77. 

A statute which does not impose a burden to which other persons 
w'ho are similarly situated are not liable, does not violate this pro¬ 
vision: Traction Co. v. Felix, 5 O. C. C. (N.S.) 270, 15 O. C. D. 393. 

The classification of all turnpike companies, adopted by the amend¬ 
ments to the act of March 16, 1865, are not unreasonable or arbitrary: 
and inasmuch as their provisions have a uniform operation upon all 
the individuals comprised in each class, they do not fall within the 
inhibition of § 26, Art. II, of the constitution: State, ex rel., v. Turn¬ 
pike Co., 37 O. S. 481. 

A law providing for the commitment of a person over sixteen 
3 'ears of age to a workhouse, if there be one. in such county, with a 
proviso as to commitment by a city, village or township other than 
the municipality containing the same, is valid: Kimbleaweez v. State, 
51 O. S. 228. 

A statute which provides that the state board of health may compel 
municipal corporations to install a sewage system except in municipal 
corporations on the Ohio river is one of uniform operation: Board of 
Health v. Greenville, 86 O. S. 1 [reversing Greenville v. Demorest, 14 
O. C. C. (N.S.) 113, 22 O. C. D. 544]. 

A law requiring electric street cars other than trail cars to have 
screens for protection of motormen or gripmen, is valid: State, ex rel., 
v. Nelson, 52 O. S. 88. 

The location and construction of public roads is a subject of a 
general nature: State, ex rel., v. Commissioner, 54 O. S. 333. 

Highway bridges are subjects of a general nature, and as such, 
laws relating to them must have a uniform operation throughout the 
state: State, ex rel., v. Davis, 55 O. S. 15. 

Section 5 of an act passed April 13, 1892 (89 O. D. 283), “To pro¬ 
vide for the appointment of a board of equalization and assessment 
in cities of the second grade, of the first class,” confers on the annual 
board of equalization created by the act, powers that substantially 
differ from those conferred upon all other annual boards of equaliza¬ 
tion in this state by the general statute upon that subject, and for 

that reason conflicts with this section of Art. IT, of the constitution 

of this state, and is void: Gaylord v. Hubbard, 56 O. S. 25 [overruling 
Gaylord v. Hubbard, 12 O. C. C. 11'2, 5 O. C, D. 529]. 

A capacity of trust companies to act as executors or administra¬ 
tors is a subject of general nature; and a statute which authorizes 
such appointment in some counties of the state, but not in others, is 
invalid: Schumacher v. McCallip, 69 O. S. 500; see, also. Bank v. Rein- 
hard, 13 O. D. (N.P.) 630. 

A general inheritance tax law which taxes the right to inherit 
property or take it by devise is valid as far as this section of the 

constitution is concerned: State, ex rel., v. Ferris, 53 O. S. 314 [affirm¬ 

ing State, ex rel., v. Ferris, 9 O. C. C. 298, 6 O. C. D. 158]. 

A statute which operates uniformly throughout the state as to all 
classes named therein has uniform operation, although the classes 
named may be relatively small: State v. Nelson, 52 O. S. 88 [citing 
and following Cass v. Dillon, 2 O. S. 607; Lehman v. McBride, 15 O. S. 
573; McGill v. State, 34 O. S. 228; Ex parte Falk, 42 O. S. 638]. 

An inheritance tax law which exempts estates not exceeding 
$20,000 in value and which imposes a tax upon large estates at a lower 
rate than upon small estates is not rendered invalid by this section, 
although it is in conflict with Art. I, §2: State, ex rel., v. Ferris, 53 
O. S. 314 [affirming State, ex rel., v. Ferris, 9 O. C. C. 298, 6 O. C. D. 
158]. 

In Davies v. State, ex rel., 6 O. C. C. (N.S.) 417, 17 O. C. D. 593, It 
was held that a statute which provided for payments to the worthy 
blind out of the county funds did not invalidate this section of the 
constitution. This case was reversed in Lucas Co. v. State, ex rel., 
75 O. S. 114, on the ground that such legislation was in violation of 
Art. I, § 19, of the Ohio constitution. 


Art.II, § 26. 




196 


Art.II, § 26 . CONSTITUTION OP THE STATE OP OHIO OP 1851 . 


A former statute which provided for the appointment of con¬ 
stables by the courts in certain cases was held not to violate this 
section: State, ex rel., v. Sayre, 12 O. C. C. (N.S.) 268, 21 O. C. D. 331. 

The law chang-ing the compensation of public ofRcers from the 
fee system to a fixed salary is not unconstitutional as in violation of 
Art. II. § 26: Theobald v. State, ex rel.. 10 O. C. C. (N.S.) 175, 20 
O. C. D. 414 [affirmed, without report, Theobald v. State, ex rel., 78 
O. S. 426]. 

A statute on the subject of chattel mortgages which applies 
equally to all mortgages throughout the state is valid as far as this 
constitutional provision is concerned, although it is applicable only to 
mortgages on household goods, wearing apparel or mechanics’ tools 
(see G. C. § 8566): Mahoney v^ Kinney, 5 O. N. P. 337, 7 O. D. (N.P.) 
405. 

An act which regulates electric railways is not by reason of such 
legislation rendered invalid by this provision (see G. C. §9100, et seq.): 
Dietz V. Traction Co., 4 O. N. P. 399, 6 O. D. (N.P.) 515. 

A statute on the subject of county agricultural societies (G. C. 
§ 9800) is not rendered invalid by this constitutional provision: Com¬ 
missioners V. Brown, 1 O. N. P. (N.S.) 357, 14 O. D. (N.P.) 241. 

General Code §§ 5599 to 5601, providing for a county board of 
revision, operates uniformly throughout the state: Scarborough v. 
Gibson, 1 O. N. P. (N.S.) 77, 13 O. D. (N.P.) 738. 

A former statute which conferred jurisdiction upon the court of 
insolvency in counties where such courts existed and withdrew such 
jurisdiction from the courts of common pleas in such counties violates 
this section: In re Brown, 8 O. N. P. 397, 11 O. D. (N.P.) 610; In re 
Roberge, 18 O. C. C. 367 [affirmed, without report, Meyer v. Dempsey, 
62 O. S. 637]. 

A special act for the relief of sureties on an official bond is not 
general in its nature and need not be uniform in its operation: State 
V. Board of Education, 38 O. S. 3. 

This section does not render invalid the statute which creates the 
State Liability Board of Awards and confers powers thereon (G. C. 
§ 1465-37, et seq.; 102 v. 525); State, ex rel., v. Creamer, 85 O. S. 349. 

The statutes creating the railroad commission G. C. § 487, et seq. 
are valid and constitutional: Railway v. Railroad Commission, 21 O. D. 
(N.P.) 468. 

III. SPECIFIC ILLUSTRATIONS. 

A. Municipal corporation.s. The original holding of the supreme 
court was that cities might be classified according to population and 
special provisions made with reference to cities of the respective 
grades and classes, even if the classification was extended so far that 
every large city of the state was in a separate grade and class: 
Marmet v. State, 45 O. S. 63; Bonebrake v. Wall, 24 Bull. 175; State, 
ex rel., v. Brewster, 39 O. S. 653; State, ex rel., v. Hawkins, 44 O. S. 98; 
State, ex rel., v. Hudson, 44 O. S. 137; State, ex rel., v. Toledo, 48 O. S. 
112; State, ex rel., v. Cincinnati, 52 O. S. 419, 

The correctness of this view was occasionally doubted, but the 
validity of such classification was sustained under the doctrine of 
stare decisis. State, ex rel., v. Wall, 47 O. S. 499; the court readily 
seized upon any events of intention to enact special legislation as a 
basis for refusing to recognize particular statutes based on such 
theory of classification: State v. Pugh, 43 O. S. 98; Costello v. Wyo¬ 
ming, 49 O. S. 202; State, ex rel., v. Covington, 29 O. S. 102; State, 
ex rel., v. Smith, 48 O. S. 211. 

Statutes which related to cities of certain classes having certain 
population at specified dates were regarded as special legislation: 
State, ex rel., v. Covington, 29 O. S. 102; State, ex rel., v. Mitchell, 31 
O. S. 592; State, ex rel., v. Anderson, 44 O. S. 247; State, ex rel., v. 
Schwab, 49 O. S. 229. 

Very narrow limits of population were regarded as showing an 
intent to enact special legislation: Kenton v. State, ex rel., 52 O. S. 59. 

For a statute held unconstitutional as providing a certain method 
of organization of cities within narrow limits of population, see 
State V. Gardner, 2 O. N. P. 405, 4 O. D. (N.P.) 34; State, ex rel., v. 
Mt. Vernon, 4 O. N. P. (N.S.) 317, 16 O. D. (N.P.) 751 [affirmed, without 
report, Mt. Vernon v. State, ex rel., 71 O. S. 428]. 

For a statute applicable to cities of the third grade, of the first 
class, see Railway v. Railway, 50 O. S. 603 [affirming Railway v. Rail¬ 
way, 6 O. C. C. 362, 3 O. C. D. 493]. 

Statutes general in character which were made to apply to cities 
of certain grades and classes were held to be unconstitutional; State, 
ex rel., v. Bargus, 53 O. S. 94; Gaylord v. Hubbard, 56 O. S. 25; Cincin¬ 
nati V. Steinkamp, 54 O. S. 284; Silverman v. Hay, 59 O. S. 582. 

Finally, the entire system of classification as it then existed was 
held to be unconstitutional: State, ex rel., v. Jones, 66 O. S. 453; State, 
ex rel., v. Beacon, 66 O. S. 491. 




197 

CONSTITUTION OF THE STATE OF OHIO OF 1851. Art.II, §26. 


Municipal code (96 v. 20; G. C. §2497, et seq.), which provided for 
the organization of cities and villages, was a general statute having 
uniform operation throughout the state: Zumstein v. Mullen, 67 O. S. 
382L 

An act requiring all buildings save private residences in any city 
of first class, first grade, of three or more stories in height, to be 
provided with suitable fire escapes, etc., is an act of a general nature, 
and void: Cincinnati v. Steinkamp, 54 O. S. 284. 

A law regulating “the construction of buildings within any city 
of the first grade, of the first class,” by permitting excavations to a 
certain depth, is a law of a general nature and must have a uniform 
operation throughout the state: Emery, et al., v. Coles, 5 O. N. P. 199. 
7 O. D. (N.P.) 414. 

General Code § 3782, regulating excavations below an established 
grade is not repugnant to this section: Arnold v. Coal Co., 7 O. D. 
(N.P.) 414, 5 O. N. P. 329. 

A law permitting lot owners in cities of the first grade of the first 
class to excavate a certain depth when building, without being liable 
to adjoining lot owners, is invalid: Hall v. Kleeman, 4 O. N. P. 201, 
6 O. D. (N.P.) 323. 

General Code § 4925, et seq., which requires the registration of 
voters in cities of a certain population is not invalid by reason of this 
section: Gentsch v. State, ex rel., 71 O. S. 151. 

A law authorizing cities of the first class first grade to build 
v^aterworks was held to be valid: Ampt v. Cincinnati, 12 O. C. C. 119 
[affirmed, Ampt v. Cincinnati, 56 O. S. 47]. 

A statute which provided that the board of administration in 
cities of the first grade and the first class should have power to 
improve alleys of a certain width was held tp be valid: Longworth v. 
Cincinnati, 17 O. C. C. 15, 9 O. C. D. 744. 

This section was said to render invalid a statute on the subject 
of primary election which was applicable only to counties containing 
cities of the first grade of the first class; that was Hamilton county: 
Cincinnati v. Ehrman, 6 O. N. P. 169, 9 O. D. (N.P.) 1. 

A statute (R. S. § 2328a) providing for sidewalks in any village 
in which sidewalks have not been built, in any county containing a 
city of the first grade, of the first class, was held to be void: Costello 
V. Wyoming, 49 O. S. 202. 

Section 2271, Revised Statutes, which limited the amount of a tax 
or assessment for an improvement in cities of the first grade, of the 
fit St class, was held not to contravene this section: Cincinnati v. 
Conner, 55 O. S. 82. 

The erection of an armory for the use of the national guard is a 
general purpose of the state, and taxes to be devoted to that purpose 
must, in obedience to the requirement of § 2, of Art. XIT, of the con¬ 
stitution, be levied by a uniform rule upon all the taxable property 
within the state: Hubbard v. Fitzsimmons, 57 O. S. 436. 

A statute to establish a park commission in a city of the second 
grade, of the first class, was held to be invalid in State, ex rel., v. 
Cowles, 64 O. S. 162. _ 

An act authorizing the improvement of alleys in cities of the first 
grade, first class, and providing for the assessing of corner lots by the 
abutting feet, is constitutional: Emery v. Cincinnati, 4 O. N. P. 220, 
6 O. D. (N.P.) 411. 

The act of the general assembly (94 O. E. 175) supplemented 
Revised Statutes, § 2835, which provided “That any city of the third 
grade of the first class, may, subject to the provisions herein con¬ 
tained, construct, reconstruct, enlarge or repair a bridge or bridges 
across any navigable river or rivers, passing into or through such 
city,” etc., was a special act applying only to the city of Toledo. Said 
act conferred corporate powers and was in conflict with Art. XIII, 

§ 1, of the constitution of Ohio. The said act being legislation upon a 
subject-matter of general nature, and being local in its operation, and 
it not appearing that any such local and temporary emergency exists 
as to justify and require special legislation, the act was in conflict 
with Art. II, § 26, of the constitution of Ohio: Platt v. Craig, 66 O. S. 
75 [reversed, Walbridge v. Jones, 22 O. C. C. 682, 11 O. C. D. 496]. 

For other statutes with reference to improvements in cities of 
certain grades and classes which were held valid in accordance with 
the original view of the supreme court, see Smith v. Cincinnati, 6 
O. N. P. 175, 9 O. D. (N.P.) 806; Sheer v. Cincinnati, 6 Dec. Rep. 1233, 
14 Am. L. Rec. Ill; Emery v. Cincinnati, 4 O. N. P. 220, 6 O. D. (N.P.) 
411. 

The act of March 26, 1890, as amended by act of March 7. 1892 
(89 V. 66), authorizing county commissioners in cities of the first grade, 
of the second class to improve streets or roads, etc., contravened this 
section: Commissioners v. Savings Institution, 119 Fed. 36, 55 C. C. A. 
614, 15 O. F. D. 33, 




198 


Art.II, § 26. CONSTITUTION OP THE STATE OP OHIO OP 1851. 


The provisions of the act of April 16. 1883 (80 v. 129), as amended 
March 25, 1884 (81 v. 78). which required that, in cities of the first 
grade, of the first class, each proprietor or lessee of a theater, etc., 
and all keepers or owners of livery stables, etc.; every dealer in 
secondhand articles, etc., shall pay a license, as herein provided, 
were held not to be in conflict with § 26, Art. II, of the constitution. 
Marmet v. State, 45 O. S. 63. 

A statute imposing a license upon dogs in cities of the first 
grade, of the first class, was held to be unconstitutional in Fagin v. 
Humane Society, 6 O. N. P. 357, 9 O. D. (N.P.) 341. 

A temporary act may be either general or special; and an act of 
a general nature which operajies uniformly throughout the state and 
upon every individual corporation of the classes therein defined, but 
which is by its terms limited in operation to a specified period of 
time, is a temporary general statute: Railway v. Horstman, 72 O. S. 
93 [reversing Horstman v. Railway, 1 O. N. P. (N.S.) 25, 13 O. D. 
(N.P.) 670; Horstman v. Railway, 12 O. D. (N.P.) 756, and Horstman 
V. Railway, 14 O. D. (N.P.) 545]. 

The act of the general assembly, entitled, “An act to amend and 
supplement §§ 2505a and 2505b of the Revised Statutes of Ohio, as 
enacted May 1, 1891, and amended April 18, 1892,” passed April 22, 
1896 (92 O. L. 277), is constitutional, it being a law of a general 

nature v/hich operates uniformly throughout the state and upon every 
individual corporation of the classes therein defined: Railway v. 
Horstman, 72 O. S. 93 [reversing Horstman v. Railway, 1 O. N. P. 
(N.S.) 25, 13 O. D. (N.P.) 670; Horstman v. Railway, 12 O. D. (N.P.) 
756, and Horstman v. Railway, 14 O. D. (N.P.) 545]. 

“If it be true, as argued by the defendant in error and as held by 
the court below, that it, is possible that some street railway com¬ 
panies may be excluded from the class, § 26, of Art. II, of the con¬ 
stitution would not thereby be violated. This was the precise point 
decided in State v. Nelson, 52 O. S. 88. In that case it was remarked 
in the opinion: ‘Of late years an effort has frequently been made to 
claim for this section of the constitution a wider scope than to guard 
against the evils resulting from legislation of the character mentioned 
by Thurman, J., in Cass v. Dillon; Scott, J., in Dehman v. McBride; 
Boynton, J., in McGill v. State, and Okey, J., in Falk, Ex parte, but 
such efforts have uniformly failed. The only statutes which have been 
declared in conflict with this section of the constitution are statutes 
making different classes of different parts of the territory of the 
state, such as cities, villages,’ etc. That remark is just as true now 
as it was when it was made, a little more than ten years ago. The 
proposition that because some individuals were not included in a 
class defined in a law of a general nature, the law was for that reason 
repugnant to § 26, of Art. H, of the constitution, was distinctly ad¬ 
vanced in Senior v. Ratterman, 44 O. S. 661, and was denied by the 
court, both in the syllabus and at length in the opinion by Spear, J. 
It was there held that the constitutional rule of uniformity of oper¬ 
ation throughout the state was not violated, notwithstanding the con¬ 
tention of counselt hat ‘the uniformity of operation required applies as 
well to individuals and occupations as to geographical limits.’ The 
law then under consideration was of a general nature, but did not 
operate alike on all liquor dealers. The court said: ‘The principle of 
uniform operation requires simply that the law shall bear equally in 
its burden upon persons standing in the same category. * * ♦ We 

are not prepared to say that the classification is not warranted.’ 
It was truly and forcibly said by Burket, J., in State, ex rel., v. Spell- 
mire, 67 O. S. 77, that ‘when a law is available in every part of the 
state as to all persons and things in the same condition or category, 
it is of uniform operation throughout the state.’ See, also, Platt v. 
Craig, 66 O. S. 75, at page 79. This act, as we have already said, op¬ 
erates throughout the state upon every municipal corporation therein, 
and upon every street Railway corporation or company of the class 
defined; and therefore it is not in conflict with § 26, of Art. II, of the 
constitution”: Ra.ilway v. Horstman, 72 O. S. 93 [reversing Horstman 
V. Railway, 1 O. N. P. (N.S.) 25, 13 O. D. (N.P.) 670; Horstman v. Rail¬ 
way, 12 O. D. (N.P.) 756, and Horstman v. Railway, 14 O. D. (N.P.) 545]. 

Ivaws relating to grants of street railway franchises and routes 
established by municipalities must have uniform operation through¬ 
out the state: Railway v. Railway, 5 O. C. C. (N.S.) 583, 16 O. C. D. 
180 [affirmed, w'ithout report. Railway v. Railway, 73 O. S. 364]. 

Where a statute on the subject of street railways which excepted 
certain cities from its provisions was valid was discussed, but not 
decided in Hattersly v. Waterville, 4 O. C. C. (N.S.) 242, 16 O. C. D. 226. 

An act that merely detaches from a municipal corporation part of 
Its territory and attaches it to an adjoining township does not con¬ 
travene this section: Metcalf v. State, ex rel., 49 O. S. 586. 

An act authorizing cities of the first grade, of the first class, to 
annex contiguous territory was held to be valid: State, ex rel., v. 
Cincinnati, 52 O. S. 419. 



199 


CONSTITUTION OF THE STATE OF OHIO OF 1851. 


A statute which applied to any city of the first class having a 
population of less than one hundred thousand inhabitants at the last 
federal census was held to be of uniform operation throughout the 
state: Welker v. Potter, 18 O. S. 85. 

The act of April 3, 1885 (82 v. 101), which provided for a police 
force in “cities of the first grade, of the first class,” was held' not to 
be in conflict with this section: State, ex rel., v. Hudson, 44 O. S. 137; 
see Heck v. State, 44 O. S. 536. 

A law authorizing a city of the third grade, first class, to borrow 
money, and issue bonds for natural gas purposes is valid: State, 
ex rel., v. Toledo, 48 O. S. 112. 

A law which applies to only one city of a class and grade, and can 
never apply to any other as by requiring the action of its superior 
court and which confers corporate power is void: State, ex rel., 
V. Smith, 48 O. S. 211. 

An act authorizing a justice of the peace in a city of the second 
grade, first class, to maintain a civil action to collect fees under 
G. C. §§ 13427 and 13428, the fees when collected to be turned over 
to the city treasurer, is local and not in violation of this section: 
Hart V. Murray, 48 O. S. 605. 

An act to redistrict cities of the fourth grade, of the second class, 
is void: Kenton v. State, ex rel., 52 O. S. 59. 

When an act of the general assembly, required to have uniform 
operation throughout the state expressly excepts from its operation 
one or more cities or counties, such act by reason of such exception is 
unconstitutional and void: State, ex rel., v. Buckley, 60 O. S. 273. 

A creamatory law, applying to all cities of the second grade, sec¬ 
ond class, present and future, is valid: Seifert v. Weidner, 12 O. C. C. 1, 
5 O. C. D. 506 [affirmed, Seifert v. Weidner, 35 Bull. 399]. 

An act to prescribe the purposes for which water rents may be 
assessed and collected in cities of first grade, first class, is valid: Ampt 
V. Cincinnati, 12 O. C. C. 119, 5 O. C. D. 356 [cited and affirmed. Alter v. 
Cincinnati, 56 O. S. 47]. 

A statute which provided for the appointment of building inspect¬ 
ors by mayors of cities of the first grade, of the first class, was held to 
be unconstitutional: State, ex rel., v. Tooker, 16 O. C. C. 647, 8 O. C. D. 
656. 

The provision of § 216, of the municipal code, “That any person 
hereinafter appointed pursuant to the act ‘an act relating to market- 
houses in cities of secnd grade, of the first class, passed April 26, 
1898 * * * shall continue to act for purposes for which he was 

appointed, contravened this section”: Slatmyer v. Springborn, 5 O. C. C. 
(N.S.) 89, 16 O. C. D. 100 [affirmed, without report, Slatmyer v. Spring- 
born, 72 O. S. 683]. 

Section 4105, as amended (94 O. L. 241), extending the provisions of 
§§ 4095 to 4104 to cities of the grade of Toledo, is not unconstitutional 
on the ground of special legislation nor for want of corporate power on 
the part of the municipalitv to receive and execute the trust: State, 
ex rel., v. Toledo, 3 O. C. C. (N.S.) 468, 13 O. C. D. 327. 

Section 1765a (repealed, 96 v. 96), as of the duties of auditor of 
cities of the first grade, first class, contravened this section: In re 
Daniel Brown, 6 O. N. P. 178, 9 O. D. (N.P.) 810. 

A statute which applied only to cities of the first grade, of the first 
class, which had an administrative board with powers granted prior 
to the enactment of such statute was held to be invalid: Willen v. 
Cincinnati, 12 O. D. (N.P.) 54. 

A statute which created a city decennial board of revision was 
held not to violate this provision; since the area dealt with was a 
taxing district: Scarborough v. Gibson, 1 O. N. P. (N.S.) 77, 13 O. D. 
(N.P.) 738. 

The curative provisions of the General Code were held to be of 
uniform operation and to be valid: Columbus v. Heating & Lighting 
Co., 16 O. D. (N.P.) 311. 

A Saturday half-holiday law for cities of 50,000 population or more, 
is invalid: Diemer v. Hudson, 37 Bull. 194. 

A classification of municipal corporations for purposes of sewage 
disposal into those situated on the Ohio river and those not situated 
on the Ohio river, is valid: Board of Health v. Greenville, 86 O. S. 1 
[reversing Greenville v. Demorest, 14 O. C. C. (N.S.) 113, 22 O, C. D. 544]. 

B. Countie.s. The act of the general assembly of April 9, 1856, 
“to restore to the court of common pleas the jurisdiction of minor 
offenses in certain counties in the state” (53 v. 107), being general 
in its nature, and yet limited in express terms to a part of the coun¬ 
ties of the state, is in conflict with this provision. The courts of 
common pleas in Ohio being an organization of a general nature, and 
having by law jurisdiction over every citizen, the laws Avhich relate 
to and regulate their jurisdiction and organization are laws of a gen¬ 
eral nature, and are imperatively required to have a uniform operation 
throughout the state: Kelley v. State (see Art. IV, § 8), 6 O. S. 269. 


Art.II, § 26. 



200 


Art.II, § 26. CONSTITUTION OF THE STATE OF OHIO OF 1851. 


A statute which provided for establishing a court of insolvency 
in a county containing a city of the second grade, first class, was held 
to be valid (see G. C. § 1620, et seq.): State, ex rel., v. Bloch, 65 O. S. 
370. 

A statute which gave the probate courts concurrent jurisdiction 
with the common pleas courts in certain counties with the right of 
appeal to the circuit court is invalid: Wallace v. Leiter, 76 O. S. 185. 

A statute (R. S. § 6454) which gave to the probate court jurisdic¬ 
tion concurrent with the common pleas in criminal cases in certain 
counties was held not to be in violation of this section: Oberer v. 
State, 8 O. C. C. (N.S.) 93, 18 O. C. D. 620: Serhaut v. Englebury, 2 
O. L. R. 512, 50 Bull. 68. 

General Code §§ 10494 to 1(M96, which gives to the probate court of 
certain named counties jurisdiction concurrent with the common pleas 
court in certain named proceedings was held to be invalid in Kisling- 
bery v. Donovan, 8 O. N. P. 476, 11 O. D. (N.P.) 535. 

An act to require the county commissioners in any county having 
a population at the census of 1880 of 43,788, and containing- a city of 
the second class, third grade, to provide a depository for the county 
funds, violates this section: State, ex rel., v. Ellet, 47 O. S. 90. 

General Code §§ 2715 to 2745, providing for county depositories, does 
not contravene this section: State, ex rel., v. Oviatt, 4 O. N. P. (N.S.) 481, 
17 O. D. (N.P.) 451. 

A statute which provides one rule of compensation for county 
auditors who are in office when such statute is passed, and one rule 
for county auditors who come into office afterward is not in violation 
of this section: Cricket v. State, 18 O. S. 9. 

A statute which provided for compensation of the county auditor 
of Hamilton county is unconstitutional by virtue of this section as 
being general in nature and not of uniform operation throughout the 
state: State, ex rel., v. Lewis, 69 O. S. 202 [overruling State, ex rel., 
V. Judges, 21 O. S. 1, and following State, ex rel., v. Yates, 66 O. S. 546]. 

The act “to limit the compensation of county officers in Holmes 
county,” passed April 26, 1898 (93 O. L. 660), is a law of a general 
ruiture which does not operate uniformly throughout the state; and 
it is therefore in violation of the constitution. Art. II, § 26: State, 
eK rel. Guilbert v. Yates, 66 O. S. 546, approved and followed: State, 
ex rel., v. Garver, 66 O. S. 555; State, ex rel., v. Yates, 66 O. S. 546 
[overruled, Pearson v. Stephens, 56 O. S. 126]. 

An act relating to the duties and compensation of certain county 
officers, in Miami county, is void: Pearson v. Stephens, 13 O. C. C. 
49, 7 O. C. D. 122 [reversed in Pearson v.- Stephens, 56 O. S. 126]: 
Pearson v. Stephens, 56 O. S. 126, was overruled in State, ex rel., v. 
Yates, 66 O. S. 546. 

Revised Statutes § 1230b, providing for fees of sheriffs in certain 
counties is in violation of this section: Childs v. Perry, 5 O. C. C. (N.S.) 
33, 16 O. C. D. 543. 

Revised Statutes § 1297 (see G. C. § 3003), fixing salaries of prose¬ 
cuting attorneys in different counties contravenes this section: State, 
ex rel., v. Commissioners, 7 O. C. C. (N.S.) 512, 18 O. C. D. 170. 

A statute which provided for the fees and compensation of sheriffs 
in counties of 22,500 population or more was held to be invalid: 
Ketter v. Commissioners, 8 O. C. C. (N.S.) 73, 19 O. C. D. 149. 

A statute which regulates the compensation of county officers in 
certain specified counties is in violation of this section: State, ex rel., 
V. Yates, 66 O. S. 546 [reversing State, ex rel., v. Yates, 21 O. C. C. 
686, 12 O. C. D. 298]; State, ex rel., v. Garver, 66 O. S. 555 [reversing 
State, ex rel., v. Garver, 13 O. C. D. 1401; Childs v. Perry, 5 O. C. C. 
(N.S.) 33, 16 O. C. D. 543. 

An act providing that the salaries of county officers shall be 
fixed under a rule based on population does not fail of uniform oper¬ 
ation throughout the state: Theobald v. State, ex rel., 10 O. C. C. 
(N.S.) 175, 20 O. C. D. 414 [affirmed, without opinion, Theobald v. State, 
ex rel., 78 O. S. 426]. 

A statute which provides for a deputy coroner in counties which 
contain cities of the first class, of the second grade, is in violation of 
this section: Wright v. Droege, 12 O. C. C. (N.S.) 335, 21 O. C. D. 416. 

A statute which defines powers and duties of county commissioners, 
but excepts Hamilton and Cuyahoga counties from the operations of 
provisions that relate to the employment of counsel was held to be 
valid in Billings v. Dressier, 5 O. N. P. 114, 7 O. D. (N.P.) 250. 

It was originally held that a statute providing for the improvement 
of a road was local in its nature; and that accordingly a statute appli¬ 
cable to one county, only was valid since such a law need not be of 
uniform operation throughout the state: State, ex rel., v. Commis¬ 
sioners, 35 O. S. 458. 

Subsequently the supreme court decided that the subject matter of 
public roads was of a general nature; and that a statute upon that 
subject must be uniform in operation throughout the state: Mott v. 



201 

CONSTITUTION OP THE STATE OP OHIO OP 1851. Art.II, § 26. 


ITubbard, 59 O. S. 199; Hixson v. Burson, 54 O. ‘S. 470; State, ex rel., 
V. Davis, 55 O. S. 15. 

An act authorizing' county commissioners to improve a certain 
avenue and issue bonds to pay for such improvement is in violation 
of this section: State, ex rel., v. Bader, 12 O. C. C. 659, 5 O. C. D. 
703. 

General Code § 7405, authorizing purchase of toll roads by counties 
is not in conflict with this section: Ferris v. Commissioners, 9 O. C. C. 
(N.S.) 169, 19 O. C. D. 622. 

The act of March 21, 1890 (91 O. L. 543), authorizing counties of 
certain population to issue bonds for road improvements was held 
not to contravene this section: Rees v. Olmstead, 135 Fed. 296, 68 
C. C. A. 50, 14 O. F. D. 737. 

The collection of taxes was originally held by the supreme court 
to be a matter of local and temporary nature; and a statute which 
provided for the appointment of a tax inquisitor in one or more coun¬ 
ties of the state was held to be valid: State, ex rel., v. Cappellar, 39 
O. S. 207; State, ex rel., v. Crites, 48 O. S. 142; State, ex rel., v. Lewis, 
12 O. D. (N.P.) 46; see. also, State, ex rel., v. Gilflllan, 3 O. N. P. (N.S.) 
153, 15 O. D. (N.P.) 756 [affirmed. State, ex rel., v. Gilflllan, 19 O. C. D. 

7()9, 3 O. L. R. 476, modified, Thomas v. State, ex rel., 76 O. S. 341]; 

Gilbert v. Thomas, 16 O. D. (N.P.) 9 [following State, ex rel., v. Hag- 

erty, 5 O. C. C. 325, 3 O. C. D. 161]; State, ex rel., v. Lewis, 4 O. N. P. 

(N.S.) 454, 17 O. D. (N.P.) 370, 1 Hosea, 21 [reversed. State, ex rel., v. 
Lewis, 74 O. S. 403]; State, ex rel., v. Morganthaler, 20 O. D. (N.P.) 76, 
7 O. L. R. 105. 

This view was subsequently abandoned; and it was held that such 
subject-matter was one of a general nature and that a statute provid¬ 
ing for the employment of a tax inquisitor must be uniform through¬ 
out the state: State, ex rel., v. Lewis, 74 O. S. 403; State, ex rel., v. 
Gilflllan, 19 O. C. D. 709, 3 O. L. R. 476; for opinion in common pleas 
court, see State, ex rel., v. Gilflllan, 15 O. D. (N.P.) 756. 

For retention of fees under an unconstitutional county officers’ 
salary act, see State, ex rel., v. Vail, 84 O. S. 399. 

A law preventing the refunding of taxes in counties containing 
a city of the first grade, of the first class, is void: Commissioners v. 
Rosche Bros., 50 O. S. 103. 

A statute which authorizes the commissioners of Lucas county to 
levy taxes for certain purposes at a rate not to exceed five mills on 
the dollar was held to be a law of a general nature which did not 
have a uniform operation throu.ghout the state and which was there¬ 
fore unconstitutional: Pump v. Commissioners, 69 O. S. 448. 

A statute which authorizes the county commissioners of certain 
counties to extend the time for any taxes at their discretion was held 
to be constitutional in State, ex rel., v. Madigan, Treasurer, 8 O. C. C. 
(N.S.) 553, 18 O. C. D. 673. 

This case was, however, reversed in Madigan v. State, ex rel., 75 
O. S. 602, on the ground that such statute was a general law not of 
uniform operation throughout the state. 

A statute concerning the sale of lands forfeited for nonpayment 
of taxes in Hamilton county violates this section: Kattenhorn v. 
Dehner, 6 O. L. R. 610. 

An act whereby the legislature attempts to exclude certain coun¬ 
ties from its operation on account of certain trivial differences of 
population is void: State, ex rel., v. Bargus, 53 O. S. 94. (A statute 
applicable to counties except such as had a population of not less than 
31,940 and not more than 31,960; and counties which had a population 
of not less than 35,400 and not more than 35,500.) 

An act which provides for an annual board of equalization for 
Cuyahoga county, and confers upon it powers materially different 
from those possessed by the boards authorized by G. C. § 5580, et seq., 
contravenes this section: Gaylord v. Hubbard, 56 O. S. 25. 

A scheme for the erection of such county buildings as may, by 
designated county officers and persons to be appointed to act with them 
be deemed necessary is a subject of general legislation; and an act 
providing therefor must, in view of the requirement of § 26, of Art, II, 
of the constitution, have a uniform operation throughout the state; 
State, ex rel., v. Brown, 60 O. S. 462. 

A statute which exempted Cuyahoga and Franklin counties from 

the operation of the general statutes on the subject of the jurisdic¬ 

tion of justice of the peace was held to be unconstitutional: Oakmen 
V. Furniture Co., 10 O. C. C. (N.S.) 247, 20 O. C. D. 301. 

Contra: Fisher v. Garey, 11 O. D. (N.P.) 796. 

A statute which authorized Hamilton county to construct and 

furnish an armory for the Ohio national guard is invalid; State, 
ex rel., v. Gibson, 8 O. N. P. 367, 11 O. D. (N.P.) 90; see, also, Hubbard v. 
Fitzsimmons, 57 O. S. 436. 

A statute on the subject of county agricultural societies which 

applies to but one county in the state is unconstitutional; but such 




202 


Art.II, § 26, CONSTITUTION OP TUB STATE OP OHIO OP 1851. 


uriconstitutional provision may be rejected and the rest of the law 
piven full effect: Commissioners v. Brown, 1 O. N. P. (N.S.) 357, 14 
O. D. (N.P.) 241. 

A. statute applicable only to a city of the first grade, of the first 
class, which provided for the appointment of a director of public works 
in such city was held to be unconstitutional: Ramsey v. Columbus, 
12 O. D. (N.P.) 725. 

C. Towushii).s. General Code § 5811, et seq., which authorizes county 
commissioners and township trustees to grant permission for certain 
animals to run at large is not unconstitutional under this section: 
Fox V. Fox, 24 O. S. 335. 

Authorizing a certain to-vynship to use certain land for cemetery 
purposes is local: Norton v. Trustees, 8 O. C. C. 335, 4 O. C. D. 422 
[affirmed, without report, Paine v. Norton, 54 O. S. 682]. 

The act of March 17, 1896, detaching territory from Perry and 
Bokescreek townships, Logan county, and creating a new township 
contravenes this section: State, ex rel., v. Campbell, 14 O. C. C. 481, 

8 O. C. D. 62 [affirmed, without report, Campbell v. State, ex rel., 56 
O. S. 794]. 

An act (91 O. L. 803) authorizing trustees of Columbia township 
to construct sidewalks is repugnant to this section: Andrews v. 
Settles, 16 O. C. C. 638, 9 O. C. D. 191. 

Under a constitutional provision like this, trustees of a particular 
township can not be given authority by the legislature to widen or 
extend a certain road in a prescribed manner: Loeb v. Township, 91 
Fed. 37, 12 O. F. D. 349. 

A statute which authorized the trustees of a certain named 
township to sell bonds to pay off the outstanding indebtedness (90 v. 
291) was held to be valid: Bank v. Trustees, 98 Fed. 524, 13 O. F. D. 
318. 

D. Schools. Under this section it was originally held that laws 
relating to the organization and management of common schools must 
have uniform operation throughout the state and accordingly a statute 
w'hich provided for the consolidation of two school districts named 
therein was held to be unconstitutional: State v. Powers, 38 O. S. 54. 

This view was subsequently abandoned and it was held that the 
subject of dividing territory into school districts was in its nature 
local; but special legislation on such subject was not forbidden by this 
section; and that the formation of special school districts from 
territory within the limits of a township was not in conflict with this 
section: State, ex rel., v. Shearer, 46 O. S. 275 [overruling State v. 
Powers, 38 O. S. 54]; see, also. State, ex rel., v. Board of Education, 
7 O. C. C. 152; Mooney v. Bell, 8 O. N. P. 685, 11 O. D. (N.P.) 786. 

In turn this view was abandoned; and it was held that whenever 
a law of general nature having a uniform operation throughout the 
state, can be made fully to cover and provide for any given subject- 
matter, the legislation, as to such subject-matter, must be by general 
laws, and local or special laws can not be constitutionally enacted as 
to such subject-matter. The subject-matter of schools, including 
school districts, and establishing and changing the same, is of a general 
nature; and all legislation as to them must be general, having a uni¬ 
form operation throughout the state: State, ex rel., v. Shearer, 46 
O. S. 275, overruled, and State v. Powers, 38 O. S. 54, reaffirmed. 

The act of April 2, 1902, entitled, “An act to create a special school 
district in Springfield and Sycamore townships, in Hamilton county, 
and Union township, Butler county” (95 O. L. 743), is in conflict with 
that part of § 26, Art. II, of the constitution, which provides that: “All 
laws of a general nature, shall have a uniform operation throughout 
the state,” and is therefore unconstitutional and void: State, ex rel., 
V. Spellmire, 67 O. S. 77. 

A statute which attempts to make valid special school districts 
which have been created by acts which were unconstitutional by 
reason of this section is itself unconstitutional: Bartlett v. State, 73 
O. S. 54; State, ex rel., v. Hickman, 5 O. C. C. (N.S.) 175, 17 O. C. D. 
216. 

Laws relating to schools are of a general nature: State, ex rel., v. 
Kurtz, 21 O. C. C. 261, 11 O. C. D. 705. 

An act (92 O. L.' 683) to create a school-teachers’ pension fund in 
cities of the third grade, first class, is in conflict with this section: 
State, ex rel., v. Hubbard, 22 O. C. C. 252, 12 O. C. D. 87 [affirmed, with¬ 
out report, Hibbard v. State, 65 O. S. 574]. 

That part of 99 v. 585, amending R. S. § 3897, which applied only 
to districts of cities having a population of more than 50,000 persons 
in which the number of members of the board of education was 
changed under the statute, was held to apply only to Cincinnati and 
to be unconstitutional: State, ex rel., v. Withrow, 11 O. C. C. (N.S.) 
569, 21 O. C, D. 215. 

A statute which forbade boards of education to make contracts 
unless the money was in the treasury except boards of education in 




203 


CONSTITUTION OP THE STATE OP OHIO OP 1851. 


certain city school districts was held to be unconstitutional: Bower 
V. Board of Education. 8 O. C. C. (N.S.) 305, 18 O. C. D. 624. 

General Code § 7735, which permitted children living- more than a 
mile and one-half from the school to which they were assigned, to 
attend a nearer school was held to be unconstitutional as conferring a 
privilege upon certain children of school age and not upon others 
similarly situated: Cincinnati School District v. Oakley Special School 
District No. 11, 17 O. C. D. 824, 3 O. D. R. 116. 

General Code § 7740, et seq., which provides for the examination of 
pupils of special districts, a township district, for a commencement, and 
for the payment of the tuition of pupils who receive diplomas for their 
attendance at high schools is uniform in its operation and is not 
rendered invalid by this section: State, ex rel., v. Board of Education, 
11 O. D. (N.P.) 422. 

E. Ronds. Roads and highways are subjects of a general nature 
and statutes thereon must be uniform in operation throughout the 
state: Thorniley v. State, ex rel., 81 O. S. 108; State, ex rel., v. Davis, 
55 O. S. 15; Hixson v. Burson, 54 O. S. 470. 

A statute applicable to one mile assessment pikes which makes 
a different provision for Franklin county from the provisions in force 
in the other counties of the state is invalid as to Franklin county: 
Grove v. Leidy, 9 O. C. C. 272, 6 O. C. D. 116 [affirmed, without report, 
liOidy V. Grove, 53 O. S. 662]. 

Statutes which provided for the control and management of roads 
in certain counties of the state and for a different control and manage¬ 
ment in other counties of the state are unconstitutional: Thorniley 
V. State, ex rel., 81 O. S. 108. 

F. Elections. A statute on the subject of boards of election 
which exempted therefrom certain cities was held to be invalid as of a 
general nature and not of uniform operation throughout the state: 
State, ex rel., v. Buckley, "60 O. S. 273 [afffrming State, ex rel., v. Buck- 
ley, 17 O. C. C. 86, 9 O. C. D. 341]. 

The primary election laws (see G. C. § 4948, et seq.) are not 
rendered invalid by this section: State, ex rel., v. Felton, 77 O. S. 554; 
see, also. State, ex rel., v. Poston, 58 O. S. 620. 

The existence of special statutes upon the subject of primary 
elections in certain counties does not render invalid general laws on 
the subject of primary elections applicable to all the counties of the 
state: State, ex rel., v. Felton, 77 O. S. 554; see, also. State, ex rel., 
V. Poston, 58 O. S. 620. 

A statute on the subject of primary elections applicable to the 
cities of the first grade, of the first class, was held to be unconstitu¬ 
tional: Cincinnati v. Ehrman, 6 O. N. P. 169, 9 O. D. (N.P.) 1. 

A statute which provided that the polls should close at 4: 00 p. m. 
and in cities having a population of 300,000 or more is constitutional: 
Gentsch v. State, ex rel., 71 O. S. 151. 

This section does not render invalidate the statute which provides 
for a non-partisan judiciary ballot for the election of judges (G. C. 
§§ 5054-1, et seq.): State, ex rel., v. Miller, 87 O. S. —. 

G. Intoxicating liquors. A law of the general assembly allowing 
municipalities to regulate or prohibit ale and porter shops (etc.), is 
not in contravention of this section: Burckholter v. McConnellsville, 
20 O. S. 308. 

The township local option act of March 3, 1888 (see G. C. § 6119, 
et seq.) is not in conflict with this section: Gordon v. State, 46 O. S. 
607. 

A statute which authorizes municipal corporations to regulate the 
sale of intoxicating liquor is not rendered invalid by this section: 
Madden v. Smeltz, 2 O. C. C. 168, 1 O. C. D. 424. 

The statutes on the subject of local option in municipal corpora¬ 
tions (see G. C. § 6127, et seq.) is not rendered invalid by this provision: 
State, ex rel., v. Dollison, 68 O. S. 688; State, ex rel., v. Dollison, 194 
U. S. 445, 14 O. F. D. 380. 

Statutes on the subject of local option in residence districts (see 

G. C. § 6140, et seq.) are not unconstitutional: Columbus v. Jeffrey, 
11 O. N. P. 609, 2 O. N. P. (N.S.) 85, 14 O. D. (N.P.) 609. 

Statutes on the subject of local option in counties (see G. C. § 6108, 
et seq.) are not unconstitutional: Gassman v. Kerns, 19 O. D. (N.P.) 
317. 

A statute which imposes a tax upon the business of traffic in 
intoxicating liquor (see G. C. § 6071, et seq.) is not unconstitutional: 
State, ex rel., v. Frame, 39 O. S. 399. 

The legislature may in providing against evils resulting from the 
traffic in intoxicating liquors, levy a tax upon such forms of the traffic 
as, in its wisdom, may seem best without infringing upon the constitu¬ 
tional requirement, that all laws of a general nature shall be uniform in 
their operation throughout the state: Adler v. Whitbeck, 44 O. S. 539; 
see, also. Senior v. Ratterman, 44 O. S. 661. 


Art.II, § 26. 




204 


Art.II, § 26. CONSTITUTION OP TUB STATE OP OHIO OP 1851. 


General Code § 13206, which forbids the sale of intoxicating- liquors 
near county fairs is not rendered invalid by this section: Heck v. State, 
44 O. S. 536. 

An act passed April 12, 1876 (73 v. 321), to prevent gambling and 
the sale of intoxicating liquors “on or within a distance of two miles 
of Chippewa lake, in the county of Medina,” is in contravention of 
this section, and is void: State v. Winch, 45 O. S. 663. 

A law providing for the selling or giving of intoxicants within a 
mile and a half of the United States’ soldiers’ home, does not contra¬ 
vene this section: Driggs v. State, 52 O. S. 37. 

The act of April 12, 187^ (73 v. 321), entitled, “an act to prevent 
gambling and the sale of intoxicating liquors at a place therein 
named,” is in violation of § 26, Art. II, and is void: Nye v. State, 

1 O. C. C. 355, 1 O. C. D. 198. 

H. Motor vehicle.s. A statute which requires persons acquiring 
motor vehicles after its passage to procure licenses is invalid as not 
being uniform in its operation, since it does not apply to persons who 
had acquired motor vehicles before the .statute was passed: Feasel v. 
State, 6 O. N. P. (N.S.) 321, 18 O. D. (N.P.) 478. 

General Code § 6308, which provides that actions for injury to 
person or property caused by the negligence of an owner of an auto¬ 
mobile may be brought in the county where the injured person resides 
is valid: Allen v. Smith, 84 O. S. 283. 

Contra: Ploblit v. Gorman, 8 O. N. P. (N.S.) 270, 19 O. D. (N.P.) 

737. 

I. FLsli and game laws. An act requiring all persons engaged in 
fishing in Take Erie (see G. C. § 1435, et seq.) to obtain a license is 
not repugnant to this section: State v. Hanlon, 77 O. S. 19; see, to the 
same effect. State v. Owen & Owen, 4 O. D. (N.P.) 163; French v. 
Shirley, 9 O. D. (N.P.) 181. 

A statute which imposes a different license fee upon nets used 
from rowboats from that which is imposed upon the same nets used 
from steamboats was held' to be unconstitutional: Yensen v. State, 

7 O. N. P. 18, 9 O. D. (N.P.) 168. 

J. Licen.se. That part of the act of April 21, 1896, entitled, “An 
act to promote the public health and regulate the sanitary construc¬ 
tion of house-drainage and plumbing,” which requires any plumber, 
whether master, or employing plumber, or journeyman, before engag¬ 
ing in the business, to undergo an examination as to fitness, and 
obtain a license, but permits all members of a firm to pursue the busi¬ 
ness where one only has procured such license, and all members of a 
corporation to pursue it where the manager only has procured such 
license, does not operate equally upon all of a class pursuing the call¬ 
ing under like circumstances, and is invalid: State v. Gardner, 58 O. 
S. 599. 

A statute which provided that steam engines could be operated 
only by licensed engineers or by persons who had acted as steam 
engineers in Ohio for a period of three years prior to the enactment 
of such statute was held to be unconstitutional: Harmon v. State, 
ex rel., 66 O. S. 249 [affirming State, ex rel., v. Harmon, 3 O. C. C. (N.S.) 
399, 13 O. C. D. 292]. 

General Code § 1047, et seq., providing for the examination and 
licensing of stationary steam engineers, is constitutional in that it 
prescribes that the rules and regulations for such examinations shall 
be uniform throughout the state: Theobald v. State, 20 O. C. D, 336. 

K. Fello-w servant law. General Code § 9016, known as the 
fellow servant law, does not contravene this section, because it applies 
to railroads only: Froelicli v. Railway, 5 O. C. C. (N.S.) 6, 14 O. C. D. 
359 [reversing Froelich v. Railway, 13 O. D. (N.P.) 107]; see, also. 
Roe V. Railway, 13 O. D. (N.P.) 260. 

Contra: Maltby v. Railway, 13 O. D. (N.P.) 280. 

li. Ftuilding and loan associations. General Code § 9650, which 
confers power on building and loan associations “to assess and collect 
from members and depositors, such dues, fines, interest and premium 
on loans made, or other assessments as may be provided for in the 
constitution and by-laws,” and which further provides that “such 
dues, fines, premiums or other assessments shall not be deemed usury, 
although in excess of the legal rate of interest,” is a valid enactment, 
and is not in conflict with § 26, of Art. II, nor with § 2. of Art. I, of 
the constitution of Ohio: Cramer v. Trust Co., 72 O. S. 395; see, to the 
same effect. Building & Loan Association v. Desnoyers, 4 O. C. C. (N.S.) 
337, 16 O. C. D. 352. 

M. Penal statutes. Under the former constitution, laws having 
a general subject-matter, and, therefore, “of a general nature,” were 
frequently limited expressly, in their operation, to one or more coun¬ 
ties, to the exclusion of other portions of the state. As a consequence. 





205 


CONSTITUTION OP THE STATE OP OHIO OP 1851. Art.II, § 26. 


on the same subject, there might be one law for Hamilton county, 
another for Franklin, and still a third for Ashtabula. This naturally 
led to improvident legislation, enacted by the votes of legislators who 
were indifferent in the premises, because their own immediate constit¬ 
uents were not to be affected by it. To arrest and, for the future, 
prevent this evil, the provision in question was inserted in the present 
constitution: Lehman v. McBride, 15 O. S. 573. 

General Code § 13408, known as the tramp law, is not in conflict 
with this section: State v. Hogan, 63 O. S. 202. 

General Code §§ 13376, 10062 to 10066, 10070 to 10072, and 13423 to 
13440, relating to cruelty to animals, is not in conflict with this section: 
Beamer v. State, 21 O. C. C. 440, 12 O. C. D. 4. 

General Code § 12474, providing the penalty for embezzlement by 
bank officers is not in conflict with this section: In re Bachtel, 11 
O. C. C. (N.S.) 537, 21 O. C. D. 159. 

The imprisonment or penalty clause of the Valentine anti-trust 
law is not in contravention of this section: State v. Hygeia Ice Co., 4 
O. N. P. (N.S.) 361, 16 O. D. (N.P.) 735. 

That a corporation can not be punished by imprisonment does 
not impair the constitutionality of § 4, of Valentine anti-trust law, as 
being a discrimination in favor of corporations: State v. Extinguisher 
Co., 20 O. D. (N.P.) 240. 

A statute which provided a punishment for having burglar’s tools 
in possession in a city of the first grade, of the first class, or within 
four miles thereof was held to be unconstitutional: Falk, Ex parte, 
42 O. S. 638. 

The act of March 7, 1835, to amend the act, entitled “An act for 
the more effectual punishment of certain offenses in the county of 
Hamilton” (S. & C. Stat., 444), is not in conflict with § 26, Art. II, 
of the present constitution of the state, as to be thereby abrogated. 
That section had, at the adoption of the constitution, only a prospective 
and not a retrospective effect upon legislation: Allbyer v. State, 10 
O. S. 588. 

IV. Jury. A statute which provided a method for returning the 
names of electors in Cuyahoga county for jury service, was held not 
to be a law of a general nature and therefore constitutional: McGill 
V. Stale, 34 O. S. 228. 

A statute which required a common pleas judge of the several 
subdivisions of the common pleas districts of the state, to appoint 
jury commissioners for the counties in their respective subdivisions, 
except certain named counties which were already provided by special 
statutes, with jury systems was held to be constitutional: State v. 
Kendle, 52 O. S. 346. 

The right of trial by jury is a subject-matter of general legisla¬ 
tion, and laws affecting it must be uniform in operation throughout 
the state: Section 26, Art. II, Constitution. 

A statute, by the provisions of which the parties to a suit in which 
the issues are of right triable by jury are “deemed” to have waived 
the right, unless a certain time before the term at which the issues 
are, by the laws of the state, required, to be made up, a demand is 
made for a jury, attended with a “deposit” of a certain sum of money 
for the benefit of the jury fund, affects the right of trial by jury, and 
must be uniform in its operation. The Cuyahoga county jury law, 
adopted May 29, 1 894 (91 Laws, 793), is, in substance, such a law, and 
being limited in its operation to Cuyahoga county, is invalid: Silber- 
man v. Hay, 59 O. S. 582. 

General Code § 11089, providing that in condemnation cases the 
jury fees shall be paid as a part of the costs by the corporation seek¬ 
ing to appropriate the land, imposes no burden upon one suitor or 
class of suitors from which others similarly situated are exempt, and 
is therefore not in conflict with § 26, of Art. II, of the Ohio con¬ 
stitution: Traction Co. v. Felix, 5 O. C. C. (N.S.) 270, 15 O. C. D. 393 
[affirmed, without report. Traction Co. v. Felix, 72 O. S. 608]. 

Statutes which exempted certain counties from the operation of 
the general jury laws were held to be unconstitutional in State v. 
Monheim, 14 O. D. (N.P.) 474. 

O. Justice of the peace. General Code § 10450, providing that 
judgments either before a justice of the peace or in the court of com¬ 
mon pleas under the forcible entry and detainer chapter, “shall not be 
a bar to any further action brought by either party,” is not class legis¬ 
lation: Laver v. Canfield, 7 O. C. C. (N.S.) 389, 18 O. C. D. 429. 

A statute which excepts certain counties from the general statute, 
which makes the jurisdiction of a justice of the peace extend through¬ 
out the county for the purpose of attachment, was held to be uncon¬ 
stitutional: Watkins v. Schlecter, 7 O. N. P. 42, 9 O. D. (N.P.) 590. 

P. liocal laws. This section does not prevent the enactment of 
statutes which are not uniform throughout the state, if the subject- 





206 


Art.II, §27. CONSTITUTION OP THE STATE OF OHIO OF 1851. 


matter is local in character; since such law is not of a general nature: 
State, ex rel., v. Commissioners, 35 O. S. 458; State, ex rel., v, Hoffman, 
35 O. S. 435; State, ex rel., v. Shearer, 46 O. S. 275; State, ex rel., v. 
Craig, 22 O. C. C. 441, 12 O. C. D. 351; Cincinnati v. Ferguson, 12 O. D. 
(N.P.) 439 [affirmed, without report, Cincinnati v. Ferguson, 66 O. S. 
658]. 

In such cases the difficulty is in determining what is a law of a 
general nature. (See cases already cited under Arts. II and III, this 
section.) 

IV. APPRO A'AL. OF OTHER AUTHORITY. 

An act of the general assembly not coming within the exceptions 
stated in the constitution. Art. II, § 26, which is passed to take effect 
and be in force when a majority of the voters at an election shall 
declare in favor, of a salary law, and if a majority of the voters do 
not so declare to be void, is passed to take effect upon the approval 
of authority other than the general assembly, and it is therefore uncon¬ 
stitutional and void: State, ex rel., v. Carver, 66 O. S. 555. 

An act authorizing a board of county commissioners to issue 
bonds to repair, enlarge or rebuild a courthouse, to be determined by 
(them) is not in conflict with this section: State, ex rel., v. Commis¬ 
sioners, 3 O. C. C. 403, 2 O. C. D. 227. 

A statute (90 v. 263) giving cities of the first class to annex con¬ 
tiguous municipal corporations, upon majority vote, by election of all 
such corporations affected; is not in contravention of this section: 
State, ex rel., v. Cincinnati, 8 O. C. C. 523, 8 O. C. D. 689. 

The Rose county local option law does not contravene either clause 
of this section: Gassman v. Kerns, 7 O. N. P. (N.S.) 626. 

This section does not prevent the general assembly from passing 
a statute, which authorizes the county or township to subscribe to 
the capital stock of a railroad or turnpike company upon the approval 
of the vote of the people: Railroad v. Commissioners, 1 O. S. 77. 

Article VIII, § 6, forbids the enactment of siich statutes under the 
present constitution: Loomis v. Spencer, 1 O. S. 153. 

Article II, § 30, provides specifically for submitting statutes, which 
change county lines or remove county seats, to popular vote: Noble 
V. Baker, 5 O. S. 524. 

Where township trustees are authorized by one section of a 
statute, to purchase land for a cemetery, and to assess a certain per 
centum upon the taxable property of the township to pay for the 
land purchased; and another section provides that before such assess¬ 
ment shall be made, it shall be necessary to submit the question to 
the voters of the township at an election for that purpose duly called, 
it was held that the statutory provision requiring such preliminary 
vote is not in contravention of the twenty-sixth section of Art. II, of 
the constitution of the state: Trustees v. Cherry, 8 O. S. 561. 

The second section of the act of April 9, 1874, which provides 
that the first section thereof “shall take effect, and be in force when 
and as soon as the same shall be adopted by a majority of all the 
electors,” “and when suitable county buildings shall have been erected,” 
by the citizens of Youngstown, is not to be construed as making the 
act “to take effect upon the approval of any other authority than the 
general assembly,” contrary to the provision of § 16, Art. II, of the 
constitution; the proper construction of said section of the act is, that 
the first section thereof shall become a law when adopted by the 
electors, and be enforced or carried into execution when the buildings 
shall have been erected: Newton v. Commissioners, 26 O. S. 618. 

1 Debates, 164, 259; 2 Debates, 215-219, 221-228, 318, 568, 578, 579, 
633, 664, 807, 832, 858, 870. 


Election and ap¬ 
pointment of offi¬ 
cers, and the fill¬ 
ing of vacancies; 
vote for U. S. 
senator to be 
viva voce. 


Section 27 . The election and appointment of all officers, 
and the filling of all vacancies, not otherwise provided for by this 
constitution, or the constitution of the United States, shall be 
made in such manner as may be directed by law; but no ap¬ 
pointing power shall be exercised by the general assembly, ex¬ 
cept as prescribed in this Constitution, and in the election of 
United States senators; and in these cases the vote shall be 
taken "TiVa voce.” 


For elections, see Art. XVII. 

For proposed renumbering of this section, see 98 v. 412. 


I. Cited. 

II. AVho are offlcers. 

III. Election and appointment of 
officers. 


IV. Filling vacancies. 

V. Appointing power not to be 
exercised by general as¬ 
sembly. 



207 


CONSTITUTION OP THE STATE OF OHIO OF 1851. 


I. CITED. 

State, ex rel., v. Brewster, 44 O. S. 589; Mason v. State, ex rel., 58 
O. S. 30; State, ex rel., v. Connor, 5 O. C. C. 305, 3 O. C. D. 151; 
Cincinnati v. Gass, 1 O. N. P. (N.S.) 169, 13 O. D. (N.P.) 703; Burch v. 
Harte, 1 O. N. P. (N.S.) 477, 14 O. D. (N.P.) 433. 

II. HO ARE OFFICERS. 

Emolument is a usual, but not a necessary element to constitute 
an office. Authority and power relating to the public interests, con¬ 
ferred by statute, and which may be vested in a board or individuals 
by election or the appointing power of the state, create an office: 
State, ex rel., v. Kennjon, 7 O. S. 547. 

The statutes of April 12, 1858 (55 v. 122, 136), which provide for 
the creation of a board, authorizing it to appoint commissioners of 
the statehouse, and the directors of the penitentiary of the state, and 
to fill all vacancies which might occur in the offices of directors or 
statehouse commissioners, and authorizing such board or a majority 
to remove any director of the penitentiary for causes specified, or 
which might by the board be deemed sufficient, created offices; and 
conceding that the general assembly could provide for the creation 
of such board and offices, yet the general assembly could not exercise 
the power of appointing the officers of such board without exercising 
“appointing power,” which is forbidden by the constitution. The exer¬ 
cise of the power of appointment and removal of state officers, and the 
filling of vacancies which may occur in state offices, is a high public 
function and trust, and not a private, or casual, or incidental agency; 
and the officers of a board so created by statute to exercise these 
public functions, are vested with official state power, and hold and 
exercise a public franchise and office: State, ex rel., v. Kennon, 7 
O. S. 547. 

Members of a market house commission, appointed by the mayor 
and approved by council under provision of an act of the legislature, 
whose powers must be exercised under the supervision and subject to 
the approval of the board of public service, whose term of office 
ceases with the completion of the market house, and who serve with¬ 
out compensation, are not “officers” within the contemplation of the 
constitution: Slatmeyer v. Springborn, 1 O. N. P. (N.S.) 157 [reversed 
on another point, Slatmeyer v. Springborn, 5 O. C. C. (N.S.) 89, 16 O. C. 
D. 100]. 

A notary public is a public officer: Burch v. Harte, 1 O. N. P. 
(N.S.) 477, 14 O. D. (N.P.) 433. 

III. EJECTION AND APPOINTMENT OP OFFICERS. 

The general assembly, under this section, may direct by law the 
manner in which any officer, not otherwise provided for by the state 
or national constitution, shall be elected or appointed: whether such 
officer shall be elected or appointed is left to the discretion of the 
general assembly: State, ex rel., v. Covington, 29 O. S. 102. 

The election and the appointment of an officer as authorized by 
Art. II, § 27, are different and distinct modes of filling an office: State, 
ex rel., v. Constantine, 42 O. S. 437. 

An amendatory statute requiring the county commissioners to 
appoint the county surveyor, then in office, to discharge duties of 
county engineer, the latter office not having been abolished, is void: 
State, ex rel., v. Staley, 5 O. C. C. 602, 3 O. C. D. 294. 

IV. FILLING VACANCIES. 

The general assembly may by law direct the manner in which all 
offices existing or created by law or vacancies therein shall be filled 
by appointment, except in cases provided by the constitution. Direct¬ 
ing by law the manner in which' an appointment shall be made, and 
making an appointment, are the exercise of two different and distinct 
powers; the one prescribing how an act shall be done, being legisla¬ 
tive: and the other, doing the act, being administrative: State, 
ex rel., v. Kennon, 7 O. S. 546. 

This section read in connection with § 1, Art. X, seems to preclude 
the claim that there is any general spirit pervading the constitution 
opposed to vesting the appointment of municipal officers in the gov¬ 
ernor or elsewhere: State, ex rel., v. Smith, 44 O. S. 348, 

The power conferred upon the general assembly by Art. II, § 27, 
of the constitution, to provide for the filling of vacancies in office, 
refers to such vacancies as may occur fortuitously. It does not 
authorize the creation of an interval between the official terms of 
persons elected to the office of sheriff: State, ex rel., v. Thrall, 59 O. 
S. 368. 

Vacancies that may be filled by appointment are such as result from 
the happening of events, the time of which can not reasonably be 
foreseen and '^provided for by election: State, ex rel., v. Beal, 60 O. S. 
203. 


Art.II, § 27. 




208 


Art.II, § 28. 


Retroactive laws. 


CONSTITUTION OF THE STATE OF OHIO OF 1851. 


The duty and power of making- appointment to fill a vacancy in 
the office of lieutenant-governor is not specially conferred on the 
executive branch of the government by the constitution, and rests 
wherever the legislature may vest it. (Art. II, § 27.) Such duty be¬ 
ing imposed on the governor by statute, it is not an executive func¬ 
tion, but is a ministerial duty: State, ex rel., v. Nash, 66 O. S. 612. 

There is no provision in the constitution for filling a vacancy in 
the office of lieutenant-governor, except as authorized under § 27, 
Art. II; and when such vacancy occurs it must in all, cases be filled 
by appointment by the governor as provided in G. C. § 141. The term 
of office of such appointee shall be for the unexpired portion of the 
term and until his successor is elected and qualified as provided in 
G. C. § 10; and “the first proper election” is the first election at which 
a lieutenant-governor would have been chosen had no such vacancy 
occurred: State, ex rel., v. Nash, 66 O. S. 612. 

V. APPOINTING POWER NOT TO BE EXERCISED BY GEN¬ 
ERAL ASSEMBLY. 

“The phrase ‘appointing power,’ as here used, is one of no ambigu¬ 
ous signification. When employed in reference to matters pertaining to 
government, or to the distribution ‘of the powers of government, it 
means the power of appointment to office—the power to select and 
indicate by name, individuals to hold office and to discharge the duties 
and exercise the powers of officers. Theirs is a public duty, charge 
and trust, conferred by public authority, for public purposes of a very 
weighty and important character. Their duties, their charge and trust, 
are not transient, occasional or incidental, but durable, permanent and 
continuous”: State, ex rel., v. Kennon, 7 O. S. 546. 

The conferring of authority on the judges of the superior court 
of Cincinnati to appoint trustees to carry out the purpose of the act 
of May 4, 1869 (66 v. 80), the construction of a railroad by that city, 
is not the exercise of appointing power by the general assembly, 
which this section forbids. It is not the creation of a new office, but 
the annexing of a new duty to an existing office: Walker v. Cincin¬ 
nati, 21 O. S. 15. 

The act to reorganize cities of the first grade, of the second class 
(Columbus), and to authorize the appointment of a board of control 
by the council, passed February 27, 1885 (82 v. 54), is not in conflict 
with § 27, Art. II, of the constitution: State v. Pugh, 43 O. S. 98. 

An act creating a commission for the erection of a soldiers’ mon¬ 
ument, is valid: Gleason v. Cleveland. 49 O. S. 431. 

An act providing that the term of office of clerks thereafter 
elected should begin on the first Monday of August next after their 
election, is valid: State, ex rel., v. McCracken, 51 O. S. 123. 

A statute which provides that municipal employes shall not be 
removed or discharged, except in accordance with the provisions of 
statutes, is not an exercise of appointing power, and is valid: State, 
ex rel., v. Hall, 2 O. C. C. (N.S.) 237, 15 O. C. D. 361. 

Contra: Bender v. Cushing, 14 O. D. (N.P.) 65. 

1 Debates, 164, 259, 260; 2 Debates, 164, 318, 568, 569, 578, 590, 653, 
664, 807, 832, 858, 870. 

Section 28. The general assembly shall have no power 
to pass retroactive laws, or laws impairing the obligation of con¬ 
tracts ; but may, by general laws, authorize courts to carry into 
effect, upon such terms as shall be just and equitable, the man¬ 
ifest intention of parties, and officers, by curing omissions, de¬ 
fects, and errors, in instruments and proceedings, arising out of 
their want of conformity with the laws of this state. {See Const. 
1802 , Art. VIII, § 16 .) 

For proposed renumbering of this section, see 98 v. 412. 

As to the power of the general assembly to alter, revise, and 
amend the charters of incorporated companies, see Const 1802, Art 
VIII, § 16. 

I. Applied, cited, con.strue<l, re¬ 
ferred to, etc. 

II. What are retroactive laws. 

III. Specific illustrations. 

A. Bounties. 

B. Taxes. 

C. Assessments. 

D. Intoxicating liquors. 

E. Vested property rights. 


F. Statutes requiring per¬ 

formance of moral duty. 

G. Procedure and remedies. 

H. Other cases. 

IV. Laws impairing the obliga¬ 
tions of contracts. 

V. .lust and equitable terms. 

VI. Manifest intention. 

VII. Curative statutes. 


I. APPLIED, CITED, CONSTRUED, REFERRED TO, ETC. 

McGill V. State, 34 O. S. '228; Dengenhart v. Cracraft, 36 O. S. 549 
[citing Miller v. Hine, 13 O. S. 565]; Goshorn v. Purcell, 11 O. S. 646; 



209 


CONSTITUTION OF THE STATE OP OHIO OF 1851. 


Arrowsmith v. Hamering, 39 O. S. 573; State v. Sinks, 42 O. S. 345; 

State, ex rel., v. Hamilton, 47 O. S. 52; Hixson v. Burson, 54 O. S. 470; 

Palmer v. Tinerle, 55 O. S. 423; State, ex rel., v. Guilbert, 56 O. S. 575; 

Thomas v. State, 76 O. S. 341; Mirich v. Gims, 79 O. S. 174; Gray v. 

Toledo, 80 O. S. 445; Poag v. Shaw, 10 O. C. C. 448, 6 O. C. D. 523, 3 
O. D. (N.P.) 269; Toledo v. Marlow, 8 O. C. C. (N.S.) 121, 18 O. C. D. 
298 [affirmed, without report, in Toledo v. Marlow, 75 O. S. 574]; Hos- 
tetter v. State, 5 O. C. C. (N.S.) 337, 16 O. C. D. 702; Toledo v. Marlow, 
8 O. C. C. (N.S.) 121, 18 O. C. D. 298 [affirmed, without report, Toledo 
V. Marlow, 75 O. S. 574; McAlpin v. Clark, 1 O. N. P. 195, 2 O. D. (N.P.) 
160; Loan Association v. Hanson, 5 O. N. P. 162, 7 O. D. (N.P.) 179; 
Waterhouse v. Waterhouse, 6 O. N. P. 106, 8 O. D. (N.P.) 73; In re 
Hobelman’s Assignment, 7 O. N. P. 661, 5 O. D. (N.P.) 403; Cincinnati 
V. Railway, 9 O. N. P. (N.S.) 433; Horstman v. Railway, 1 O. N. P. 
(N.S.) 25, 13 O. D. (N.P.) 670. 

II. AVIIAT ARE RETROACTIVE LAWS. 

“The words ‘retrospective’ and ‘retroactive,’ as applied to laws, 
seem to be synonymous. Justice Story thus defines a retrospective 
law: ‘Upon principle, every statute which takes away or impairs vested 
rights, acquired under existing laws, or creates a new obligation, 
imposes a new duty, or attaches a new disability, in respect to trans¬ 
actions or considerations already past, must be deemed retrospective’’’; 
Rairden v. Holden, 15 O. S. 207. 

A statute which imposes a new or additional burden, duty, obli¬ 
gation or liability, as to past transactions, is retroactive: Miller v. 
Hixson, 64 O. S. 39. 

It would seem obvious that the statute under consideration oper¬ 
ating retrospectively, would impair the vested right of a judgment 
creditor by imposing upon him a new obligation with respect to the 
judgment, and taking away utterly his vested right in the immunity 
of his judgment from review under the law as it stood when the 
rights of the parties were finally determined. To show the pertinency 
of numerous adjudicated cases, it is necessary to observe that, with 
respect to the present question, it is not practicable to distinguish 
between an appeal with a view to a trial de novo and a proceeding in 
error to review a judgment of an inferior court for error appearing 
upon its record. They are alike resorts to a jurisdiction which §§ 2 
and 6, of Art. IV, of our constitution denominate appellate, and they 
are equally effective to destroy the final character of the judgment 
rendered, by requiring the parties to bear the burden of a retrial upon 
questions of fact or of law, or both. A statute of this character was 
considered in Hill v. Sunderland, 3 Vt. 507, and it was adjudged to be 
void. In the course of the opinion, the question was propounded as 
suggestive of an inevitable answer: “When will be the end of strife, 
if not when a judgment is rendered which is final by the laws then 
existing?” A judgment final when rendered is representative of prop¬ 
erty in its highest form, for there remains no condition or contingency 
to affect the vested right of the prevailing party. Attention to a few 
of the many harmonious cases will show that, for the reasons already 
stated, the act, if permitted to operate retrospectively, would affect 
rights which are so determined and established that it is not within 
the function of legislation to disturb them: Gompf v. Wolfinger, 67 
O. S. 144. (The court was discussing a statute [act of October 22, 
1902] by which the legislature restored jurisdiction to the supreme 
court and attempted to make such statute apply to judgments ren¬ 
dered before its enactment.) See, also, Bevitt v. Diehl, 12 O. D. (N.P.) 
315. 


III. SPECIFIC ILLUSTRATIONS. 

A. Bounties. Statutes which authorize the payment of bounties 
to volunteers (act of March 28, 1864; 61 v. 74; act of March 6, 1866; 
63 V. 188; and act of April 16, 1867; 64 v. 231) are not rendered invalid 
by this provision: Trustees v. Dillon, 16 O. S. 38; State, ex rel., v. 
Harris, 17 O. S. 608; State, ex rel., v. Trustees, 20 O. S. 288; State, 
ex rel., v. Trustees, 20 O. S. 362. 

B. Taxes. The power vested in the general assembly under § 6, 
Art. XIII, of the constitution, to restrict the powers of taxation and 
assessment by municipal corporations, is subject to the limitations 
imposed by this provision, and the provision that the general assembly 
shall pass no “laws impairing the obligation of contracts”: Goodale 
V. Fennell, 27 O. S. 426. 

This section does not render invalid a statute which provides for 
the employment by county commissioners of a tax inquisitor to dis¬ 
cover omitted taxes: State, ex rel., v. Cappeller, 39 O. S. 207. 

A statute which authorizes the levy of taxes for paying deficiencies 
already accrued is valid: Holtz v. Commissioners, 41 O. S. 423. 


Art.II, § 28. 




210 

Art.II, § 28. CONSTITUTION OF TUB STATE OF OHIO OF 1851. 


A statute invalidating a judgment by the treasurer of taxes the 
current year and the penalties thereon, is valid; Wade v. Kimberly, 

5 O. C. C. 33, 3 O. C. D. 18. 

A statute which authorizes county auditors to charge upon the 
duplicate, taxes for any year which had been omitted, including taxes 
omitted prior to the enactment of such statute, was held not to be 
invalid, because retroactive (see G. C. § 5399, et seq.); French v. In¬ 
surance Co., 12 O. D. (N.P.) 183. 

An inheritance tax law (act of April 25, 1904; 94 v. 398)-was held 
not to be retroactive and to p.pply only to deaths occurring on the 
date it took effect or subsequent thereto: Fury v. State, 72 O. S. 448 
[reversing Hostetter v. State, 5 O. C. C. (N.S.) 337, 16 O. C. D. 702]. 

C. Asse.ssments. The power given to the county commissioners 
by the two-mile assessment pike act of March 31, 1868, and May 9, 
1868 (as amended, see G. C. § 7322, et seq.), of assessing lands which 
have not been returned by the viewers, where, in a pending proceeding, 
the improvement had been ordered before the act conferring the power 
was passed, is not in conflict with § 28, Art. II: Parker v. Burgett, 29 
O. S. 514. 

Under the two-mile assessment pike act (G. C. § 7322, et seq.), an 
improvement was ordered; afterward and before the contract was made 
or assessment ordered, the statute was amended (April 15, 1880), by 
which the rule apportioning the expenses was changed. An assess¬ 
ment made according to the statute as amended, was held to be 
right, and not give a construction to the act which made it retroactive: 
Commissioners v. Greene, 40 O. S. 318. 

The rights and liabilities of abutting owners, growing out of 
special assessments for street improvements, are fixed by the law 
existing when the improvement is ordered: Cincinnati v. Seasongood, 
46 O. S. 296. 

D. Intoxicating liquors. The law commonly known as the Scott 
law, passed April 17, 1883 (see G. C. § 6072), which made the assess¬ 
ment on the traffic in intoxicating liquors a lien on the real property 
in which the business was conducted, is not in conflict w'ith this 
section: State v. Frame, 39 O. S. 399. 

General Code §§ 13206 and 13207, which forbid sales of intoxicating 
liquor within two miles of an agricultural fair, is not in conflict with 
this section: Heck v. State, 44 O. S. 536. 

E. A'csted property rights. Statutes which affect property rights 
are regarded as prospective in their operation unless a contrary in¬ 
tention is clearly shown: Kelley v. Kelso, 5 O. S. 198. 

This section does not render invalid a statute which modifies the 
method of establishing and maintaining ditches (see G. C. § 6443, 
et seq.): Miller v. Graham, 17 O. S. 1. 

The statutes on the subject of the sale or lease of an estates tail, 
are invalid as far as they apply to estates which were in existence at 
the time of the passage of such statute (see G. C. § 11925, et seq.): 
Gilpin V. Williams, 25 O. S. 283; Ream v. Wells, 61 O. S. 131; Cameron 
\. Goebel, 20 O. C. C. 268, 11 O. C. D. 118. 

Such provisions are constitutional as far as they apply to estates 
created after the passage of such statute: Nimmons v. Westfall, 33 
O. S. 213; Oyler v. Scanlan, 33 O. S. 308. 

Under the act of April 16, 1852 (50 v. 168; see G. C. §§ 3228 to 
3230), where the parties intending to execute a sale of school land 
made a mutual mistake, whereby the purchaser obtained a deed for the 
land on the payment of a less sum than was due, an act authorizing 
the county auditor to bring suit in his own name upon such cause of 
action is not a retroactive law within the meaning of this section: 
Seeley v. Thomas, 31 O. S. 301. 

The act of May 7, 1869 (G. C. § 8522), in so far as it undertakes to 
establish possession in the purchaser at a tax sale, or those claiming 
under him, prior to its enactment, is in conflict with this section: 
Magruder v. Esmay, 35 O. S. 221. 

The act of January 31, 1871, 68 v. 15 (R. S. § 4219, repeale<l, 99 
y. 382; replaced by G. C. § 2496), in so far as it requires the owner of a 
dam constructed across a stream not navigable, and who has enjoyed 
the adverse use of such dam for the period of twenty-one years, to 
construct and maintain, at his own expense, a chute or passageway 
over the same for fish, is unconstitutional. Whether the act is valid 
where the adverse use is less than twenty-one years is not decided: 
Woolever v. Stewart, 36 O. S. 146. 

Section 218-223, Bates’ Statutes, in so far as it attempts to make the 
findings, maps, plats and surveys, prepared by the canal commission, 
competent or prima facie evidence of the truth of such findings, or 
the boundaries of such lands, or that the state has the ownership of 
such lands, or an interest therein, is unconstitutional and void, being 
in conflict with § 19, of the bill of rights, and § 28, of Art. II, of the 





211 


CONSTITUTION OP THE STATE OP OHIO OP 1851. 


constitution: State v. Tin & Japan Co., 66 O. S. 182 [affirming State v. 
Tin & Japan Co., 21 O. C. C. 218, 11 O. C. D. 587]. 

The right of the owner of land to lateral support is not a mere 
easement, but is a property right; and if the effect of a statutory 
provision is to abrogate the common law rule with reference to existing 
rights, such provision violates this section: Belden v. Franklin, 8 
O. C. C. (N.S.) 159, 18 O. C. D. 373. 

A statute providing for the priority of a mechanic’s lien taken 
after the passage of the statute over a mortgage taken before the 
passage, is unconstitutional: Feike v. Railwav, 12 O. C. C. 362, 5 
O. C. D. 640. 

A statute giving a lien for the care of animals (see G. C. § 8353, 
et seq.) was intended to be prospective only: Graham v. Winchell, 

3 O. N. P. 106, 4 O. D. (N.P.) 139. 

A city may regulate billboards and such structures, but such 
regulations must not be retroactive, and the council has no right to 
regulate existing billboards, when such billboards violated no ordinance 
at time they were erected: Cusack v. Cincinnati, 9 O. N. P. (N.S.) 466. 

F. Stntute.s requirinti: performance of moral duty. Where public 
money in the custody of a public officer of this state and with the 
disbursement of which money he is charged by law, is stolen or other¬ 
wise lost without his fault, and the legislature pass an act exonerating 
such officer and his sureties from the payment of such money, and 
direct that a tax be levied in the territory upon which the loss must 
fall to meet the deficit, such an act is not forbidden by the constitu¬ 
tion, state or federal: Board of Education v. McLandsborough, 36 O. S. 
227. 

A statute which provides for releasing a judgment against the 
sureties of a county treasurer, such release not to take effect unless 
a majority of the voters of such district vote in favor thereof, does 
not violate this section: State v. Board of Education, 38 O. S. 3. 

An act providing for the refunding of taxes erroneously paid is 
void so far as it creates and attaches a liability to a county for a past 
transaction: Commissioners v. Rosche Bros., 50 O. S. 103. 

The general assembly may pass an act authorizing a county to pay 
a demand not legally enforceable, but which, in good conscience, it 
ought to pay. Therefore, the act of April, 1904, for the relief of county 
treasurers and county commissioners is not retroactive: State, ex rel., 
V. Gibson, 4 O. C. C. (N.S.) 433, 16 O. C. D. 784 [affirming State, ex rel., 

V. Gibson, 2 O. N. P. (N.S.) 221, 15 O. D. (N.P.) 73]. 

A statute which requires county commissioners to issue bonds for 
the purpose of reimbursing the holders of bonds which have been 
declared unconstitutional, was said to be constitutional in Insurance 

Co. V. Commissioners, 106 Fed. 123, 45 C. C. A. 233, 12 O. F. D. 619 

[reversing Insurance Co. v. Commissioners, 99 Fed. 846, 13 O. F. D. 198]. 

(i. I*rocediire and remedies. This section was intended to prevent 
statutes changing the remedies whereby rights might be protected as 
long as the rights themselves were not impaired subsequently: Hays 
V'. Armstrong, 7 O. (pt. 1) 248; Towsey v. Avery, 11 O. 90; Johnson v. 
Bentley, 16 O. 97; Lewis v. McElvain, 16 O. 347; Trustees v. McCaughy, 

2 O. S. 152; Acheson v. Miller, 2 O. S. 203; Butler v. Toledo, 5 O. S. 225; 
Goshorn v. Purcell, 11 O. S. 641; Rairden v. Holden, 15 O. S. 207. 

Statutes upon the subject of the qualifications and competency of' 
witnesses deal with the remedy; and this section does not prevent such 
statutes from applying to cases which were pending when this statute 
took effect: John v. Bridgman, 27 O. S. 22. 

The legislature can not create a liability for acts to which there 
was no liability when they were committed; but where a remedy 
exists, the legislature may change it, as well to acts theretofore, as to 
those thereafter done: Railroad v. Commissioners, 35 O. S. 1. 

The act of February 6, 1871 (68 v. 17; G. C. § 12194), giving sureties 
in a judgment, certified as such therein, all the rights and remedies 
against the principal debtor that the plaintiff had at the time of pay¬ 
ment by the surety, is a remedial act, and not retroactive within the 
meaning of § 28, Art. II, of the constitution of 1851: Peters v. McWil¬ 
liams, 36 O. S. 155. 

It is not within the power of the legislature to abridge the period 
within which an existing right may be asserted so that there shall not 
remain a reasonable time within which an action may be commenced: 
Lafferty v. Shinn, 38 O. S. 46. 

A retrospective statute purely remedial in nature does not violate 
this section: Gager v. Prout, 48 O. S. 89. 

An act providing “that in any case in which a judgment has been 
or may hereafter be rendered in any court, whether a court of record 
or not, and such judgment is or shall hereafter become dormant, action 
can only be brought to revive the same within twenty-one years after 
it became dormant,” is valid: Bartol v. Eckert, 50 O. S. 31, 


Art.II, § 28. 




212 


Art.II, § 28. CONSTITUTION OP TUB STATE OP OHIO OP 1851. 


Retrospective laws that violate no principle of natural Justice, but. 
on the contrary, are in furtherance of equity and good morals, are not 
forbidden by this statute: Kloeppinger v. Grasser, 1 O. C. C. (N.S.) 457, 
15 O. C. D. 90 [reversed, without report, in Grasser v. Kloeppinger, 71 
O. S. 505]. 

Assuming that a statute, securing a homestead, in force when a 
judgment is rendered, may, without infringement of the constitutional 
provisions as to retroactive laws, be repealed, so as to deprive the 
debtor of such exemption still, even in cases where such constitutional 
inhibition does not apply, if iT be doubtful whether it was intended 
that the new act should operate retrospectively, the doubt should be 
resolved against such operation: Allen v. Russell, 39 O. S. 336. 

This section does not apply to a statute with reference to an action 
upon the bond of an executor or administrator (see G. C. § 10873): 
Rairden v. Holden, 15 O. S. 207. 

A judgment which is final by the laws existing when it is ren¬ 
dered can not constitutionally be made subject to review by a statute 
subsequently enacted; and the act of October 22, 1902, to amend § 7610, 
Revised Statutes (see G. C. § 12250), being incapable of a retrospective 
operation, does not confer upon the supreme court jurisdiction to 
review judgments which the circuit court had rendered prior to its 
passage and which were not subject to review under the provision of 
the act of May 12, 1902: Gompf v. Wolfinger, 67 O. S. 144. 

H. Other eases. Section 17, as amended March 7, 1873 (70 v. 53), 
of the act establishing boards of county commissioners and prescribing 
their duties (51 v. 422: see G. C. § 2395, et seq.), in authorizing the 
commissioners of a county to maintain the action therein provided for, 
to effect the removal of obstructions from a public highway, existing 
at the time of its passage, is not in conflict with this section: Railroad 
V. Commissioners, 31 O. S. 338. 

A statute which provides for examination for admission to prac¬ 
tice medicine is not retroactive: State, ex rel., v. Coleman, 64 O. S. 377; 
see, also, France v. State, 57 O. S. 1. 

The act of May 10, 1902 (G. C. § 274, et seq.), entitled, “An act to 
create a bureau of inspection and supervision of public offices, and to 
establish a uniform system of public accounting, auditing and report¬ 
ing, under the administration of the auditor of state” (95 O. L. 511), is 
not rendered unconstitutional by the ninth section thereof providing 
that the expense of maintaining and operating the bureau of inspec¬ 
tion shall be paid by the counties of the state out of the general 
county fund in proportion to their population.-nor by the tenth section 
thereof, providing that each taxing body be chargeable with the 
expense of auditing the accounts under its jurisdiction: State, ex rel., 
V. Shumate, 72 O. S. 487. 

The legislature might provide that the withdrawal by property 
owners of their consent to the location of a street railway shall not 
render invalid such a right already granted (see G. C. §§ 9105 to 9107): 
Hume V. Traction Co., 13 O. D. (N.P.) 70. 

An act which provides that upon a conviction of a third felony, 
the prisoner shall be imprisoned for his natural life, is no “ex post 
facto law,” although the former crimes may have been committed 
prior to the passage of the law, because it merely attaches an addi¬ 
tional offense to a felony: Blackburn v. State, 50 O. S. 428. 


IV. LAWS I3IPAIRING THE OBLIGATIONS OF CONTRACTS. 

The act of May 24, 1885 (82 v. 238; G. C. § 8568, et seq.), to regulate 
conditional leases and sales of personal property, is not in conflict 
with the constitution: Weil v. State, 46 O. S. 450. 

The act of May 3, 1852 (50 v. 263), in relation to plank road and 
turnpike companies, in so far as it undertakes to impose upon stock¬ 
holders, without their assent, individual liabilities not imposed by their 
charters, or by the laws under which they have been organized, is a 
law impairing the validity of the stockholders’ contract with the com¬ 
pany, and, therefore, unconstitutional: Ireland v. Turnpike Co., 19 
O. S. 369. 

The application of the provisions of so much of the act of April 
18, 1870, amending G. C. § 11901, as authorize the court to order a 
rescission of a contract, or to render judgment for plaintiff only upon 
his giving a bond of indemnity, to causes of action which accrued 
before the passage of that act, is inhibited by this section: Stock Co. 
V. Saas, 24 O. S. 542. 

The other provisions of amended G. C. § 11901 are remedial only, 
and do not contravene this section: Templeton v. Kraner, 24 O. S. 554. 

For the purpose of promoting the public welfare, the legislature 
has power to regulate or forbid the sale of patented articles to the same 
extent as articles not patented, if no discrimination is made: Palmer 
V. State, 39 O. S. 236. 





213 


CONSTITUTION OP THE STATE OP OHIO OP 1851. 


A fire insurance company, organized under a special charter before 
the present constitution, is subject to such reasonable regulations as the 
legislature may prescribe by general law: State, ex rel., v. Insurance 
Co., 50 O. S. 252. 

Where the charter of banks prescribes a certain tax, it is uncon¬ 
stitutional to levy another (decided under the constitution of 1802): 
State V. Bank, 7 O. (pt. 1) 125; State, ex rel., v. Moore, 5 O. S. 444. 

The charters of banks which provided for the rate of taxation 
thereon were held by the Ohio supreme court not to be contracts; or, 
if contracts, to be invalid as waiving the power of the state to levy 
taxes; Debolt v. Trust Co., 1 O. S. 563; Bank v. Debolt, 1 O. S. 591; 
Knoop V. Piqua Bank, 1 O. S. 603; Toledo Bank v. Toledo, 1 O. S. 622. 

The supreme court of the United States, however, held that such 
statutes were contracts, and, as such, were valid and could not be 
modified by subsequent legislation: Piqua Bank v. Knoop, 16 How. 
369; Bank v. Debolt, 18 How. 380; Dodge v. Woolsey, 18 How. 331. 

The statute which creates a state liability board of awards (G. C 
§ 1465-37, et seq.), does not impair the obligation of contracts: State 
ex rel., v. Creamer, 85 O. S. 349. 

The sixth section of the act of April 29, 1854 (52 v. 177), “to pro¬ 
vide for the permanent location of the seat of justice of Noble county, 
by the legal voters thereof, and for the erection of public buildings 
therein,” provides only for the natural and necessary exigencies aris¬ 
ing from fixing the county seat either at Olive or Sarahsville; and 
which exigencies must have been in the contemplation of the voters, 
whether provided for by the act or not. This act is not in conflict 
with this provision of the constitution: Noble v. Commissioners, 5 
O. S. 524. 

The fifth section of the act of March 1, 1853 (51 v. 529), “to provide 
for the removal of the county seat of Perry county from the town of 
New Lexington to the town of Somerset,” imposes upon the county of 
Perry a forfeiture of subsisting rights acquired under a legal contract, 
in the event of a majority vote against the removal of the seat of 
justice, and is, therefore, unconstitutional: State v. Commissioners, 
5 O. S. 497. 

If a statute providing for abandoning the Hocking canal and 
leasing it to a railway (91 v. 326) impairs the obligation of a contract 
between the state and the United States, a private citizen can not 
complain thereof: Voight v. Railroad, 58 O. S. 123. 

An ordinance repealing the contract ordinance before expiration is 
void as against this section: Gas Co. v. Lima, 4 O. C. C. 22, 2 O. C. D. 
396. 

This section does not render invalid statutes which are passed for 
the relief of county officials: State, ex rel., v. Gibson, 4 O. C. C. (N.S.) 
433, 16 O. C. D. 784. 

A release by the supreme court on habeas corpus proceedings, 
because the accused had not been legally extradited and a release by 
the probate court of the accused because he had remained in jail more 
than two terms, do not prevent second prosecution; they are not con¬ 
tracts with the accused and therefore there is no impairing of them: 
Ex parte McKnight, 3 O. N. P. 255, 4 O. D. (N.P.) 284; see, also. Bank 
V. McGuffey, 1 O. C. C. 88, 1 O. C. D. 53. 

A change of judicial decision seems to be regarded by our supreme 
court as a law impairing the obligation of contracts: Lewis v. 
Symmes, 61 O. S. 471; Cincinnati v. Taft, 63 O. S. 141; Thomas v. State, 
ex rel., 76 O. S. 341. 

V. JUST AND EaUITABLE TERMS. 

This provision is permissive, and not mandatory, and it still 
remains a question for the courts to determine under what circum¬ 
stances, on what principles of equity, they will give effect to an 
instrument or conveyance which is invalid by law: Hout v. Hout, 20 
O. S. 119. 

The jurisdiction conferred by this phrase is equitable in its char¬ 
acter, rather than legal: Hume v. Dixon, 37 O. S. 66. 

VI. MANIFEST INTENTION. 

“The intention must be manifest; but how manifested is not ex¬ 
pressed. The courts, under a direction to find the intention, with a 
view to the correction of an omission or defect, in analogy to like 
cases, would not act unless the intention was manifest; and in view 
of this principle of law, it is probable the expression was used. It may 
happen that a mere inspection of the imperfect instrument will show 
what is the omission, defect or error, and make manifest the intention 
of the parties. But giving the strictest meaning to the expression, 
‘manifest intention,’ as applied to a written instrument, we think the 
courts are not confined to a mere inspection of the instrument, as to 
which the omission, defect or error is alleged to exist, but are, at least, 
entitled to be placed in the same position as if called on to construe 
and give effect to a perfect instrument. The object being to ascertain 
if there be an omission, defect or error in the instrument, which has 


Art.II, § 28. 



214 


Art.II, §28. CONSTITUTION OP THE STATE OP OHIO OP 1851. 


prevented the manifest intention of the parties from being carried into 
effect, the court may look to the subject-matter, the connection of the 
parties with it and the surrounding circumstances at the time of the 
execution of the instrument”: Goshorn v. Purcell, 11 O. S. 641. 

“The language of this proviso extends not only to omissions of 
othcers in proceedings connected with the execution of deeds, but to 
omissions, defects and errors in deeds—to the omissions, not only of 
officers, but of parties. We should, therefore, look rather to the prin¬ 
ciple of justice and right, which the rule was intended to enforce by 
an application to past transactions, than to particular instances in 
which a like application had been made, though historically connected 
with the adoption of the rule”: Goshorn v. Purcell, 11 O. S. 641. 

The act of March 25, 1880 (77 v. 83), which provides “that in all 
municipal corporations which may have heretofore, by ordinance, au¬ 
thorized the use of the streets for certain purposes, such ordinance 
shall be valid,” is not in conflict with this section: Kumler v. Silsbee, 
38 O. S. 445. 


VII. CURATIVE STATUTES. 

“It is obvious that the instrument or proceeding must be one 
which, had there been no omission, defect or error, would have carried 
into effect the intention of the parties or officers. If the instrument 
or proceedings be such that, in the absence of any omission, defect or 

error, it would have been inoperative, then it can not be regarded as 

within the meaning of the proviso. This is shown from the requisition, 
that the omission, defect or error must arise from the want of con¬ 
formity of the instrument or proceeding with the laws of the state. 

An instrument or proceeding which, having no omission, defect or 

error, would still not conform with the laws of the state, and, there¬ 
fore, not carry into effect the intention, can not be one of those 
intended. The proviso proceeds on the assumption that the instrument 
or proceeding, but for the omission, defect or error, would have con¬ 
formed to the laws, and therefore have carried into effect the intention 
of the parties. It, therefore, does not extend to any instrument or 
proceeding not authorized by the laws of the state, as a valid and 
effectual expression of the intention of the parties. It does not 
authorize the general assembly to give power or capacity to parties 
not possessed when any instrument or proceeding was made or had. 
An attempt to do this would come within the prohibition against retro¬ 
active laws”: Goshorn v. Purcell, 11 O. S. 641. 

“The principle in view of which the language of the proviso should 
be construed, would extend that language to cases where parties com¬ 
petent to carry their intention into effect, by an instrument or pro¬ 
ceeding made or had in conformity with the laws of the state, attempt 
to do so, but fail on account of an omission, defect or error; and the 
intention being manifest, justice and equity require that it should not 
bo defeated by such omission, defect or error. The parties must be 
competent, their intention must be manifest—it must be evinced by 
some act, by some instrument or proceeding, though imperfect from a 
want of conformity with the law, and the relief must be upon just and 
equitable terms”: Goshorn v. Purcell, 11 O. S. 641. 

This section authorizes the legislature to enact curative statutes 
which are retroactive in their character, if they do not impair existing 
valid contracts or disturb vested rights: Burgett v. Norris, 25 O. S. 308. 

Where a municipal corporation, in exercising the power of assess¬ 
ment to pay for a public improvement, levies the assessment upon 
property which was not subject to be charged therewith, and, in a 
suit brought to enforce the assessment, the property thus charged was 
ordered to be sold to pay the same, it is competent for the legislature 
to relieve the property thus ordered to be sold, and to require the 
amount improperly charged thereon to be paid out of the funds of the 
corporation: State, ex rel., v. Hoffman, 35 O. S. 435. 

Under this section defects in the execution of the deed of a married 
woman could be corrected and cured, although such conveyance was 
made prior to the passage of such statutes: Goshorn v. Purcell, 11 
O. S. 641; Purcell v. Goshorn, 2 D. 90; Miller v. Hine, 13 O. S. 565; Smith 
V. Turpin, 20 O. S. 478. 

For the validity of curative legislation, see, also. Railway v. 
blorstman, 72 O. S. 93 [reversing Horstman v. Railway, 1 O. N. P. 
(N.S.) 25, 13 O. D. (N.P.) 670; Horstman v. Railway, 12 O. D. (N.P.) 
756, and Horstman v. Railway, 14 O. D. (N.P.) 545]. 

The legislature has authority under favor of this section to enact 
curative statutes legalizing contracts made ultra vires by municipal 
corporations if the subject-matter thereof is such that the legislature 
would have had original authority to legislate with reference thereto: 
Columbus V. Heating & Lighting Co., 16 O. D. (N.P.) 311. 

1 Debates, 164, 263-270, 273-284; 2 Debates, 165-175, 185-210, 240- 
281, 286, 318, 569, 589-593, 596, 597, 605-632, 664, 808, 832, 858, 870. 




215 


CONSTITUTION OF THE STATE OP OHIO OF 1851 


Section 29. No extra compensation shall be made to any 
officer, public agent, or contractor, after the service shall have 
been rendered, or the contract entered into; nor shall any money 
be paid, on any claim, the subject matter of which shall not 
have been provided for by pre-existing law, unless such com¬ 
pensation, or claim, be allowed by two-thirds of the members 
elected to each branch of the general assembly. 

For proposed renumbering of this section, see 98 v. 412. 


I. Cited. II. Specific illustrations. 

I. CITEI3. 

State, ex rel., v. Trustees, 20 O. S. 362; State, ex rel., v. Oglevee, 
36 O. S. 324; Chalfant v. State, ex rel., 37 O. S. 60; State, ex rel., v. 
Cappeller, 39 O. S. 207; State, ex rel., v. Smith, 44 O. S. 348; Burch v. 
Harte, 1 O. N. P. (N.S.) 477, 14 O. D. (N.P.) 433. 

II. SPECIFIC ILLUSTRATIONS. 

At the time of the raid through Ohio by the confederate forces, led 
by Morgan, in 1863, and their destruction of private property, there was 
no subsisting law requiring or authorizing the payment by the state 
of the damages thereby occasioned to individuals; and, therefore, 
under the provisions of this section, claims for such damages can not 
be paid out of the state treasury till allowed by the concurrent votes 
of two-thirds of the members elected to each branch of the general 
assembly. Upon the question whether such claims have been allowed 
by the number of members required by the constitution, the legislative 
journals must furnish the appropriate evidence: Fordyce v. Godman, 
20 O. S. 1. 

A single branch of the general assembly can not, by resolution, 
allow compensation for extra services performed by its sergeant-at- 
arms, such compensation being inhibited by this section, unless the 
services were provided for by pre-existing law, or the allowance be 
ratified by two-thirds of the members elected to each branch of the 
general assembly: State, ex rel., v. Williams, 34 O. S. 218. 

The appropriation of $10,000 for Longview asylum, contained in the 
act of April 15, 1880 (77 v. 249), is valid. General Code §§ 2004-2034, 
in relation to Longview asylum, do not constitute a contract between 
the state and the county of Hamilton. Neither of these statutes is 
within the provisions of this section of the constitution, which requires 
the vote of two-thirds of the members elected to each branch of the 
general assembly. The payment of a “claim” against the state was 
not the subject-matter of this legislation. The sole object was the 
making of a provision for the support of a public institution, which 
the constitution enjoins (Art. VII, §1): State, ex rel., v. Oglevee, 36 
O. S. 211. 

The act of March 21, 1881, appropriating money to repair the build¬ 
ings of the Ohio university, is not within the operation of § 29, Art. II, 
of the constitution, requiring the allowance, by two-thirds of the 
members elected to each branch of the general assembly, of claims the 
subject-matter of which was not provided for by a pre-existing law: 
State, ex rel., v. Oglevee, 37 O. S. 1. 

1 Debates, 164, 284, 285; 2 Debates, 318, 569-574, 578, 597, 633, 664, 
808, 832, 858, 870. 


Section 30. No new county shall contain less than four 
hundred square miles of territory, nor shall any county be 
reduced below that amount; and all laws creating new counties, 
changing county lines, or removing county seats, shall, before 
taking effect, be submitted to the electors of the several counties 
to be affected thereby, at the next general election after the 
passage thereof, and be adopted by a majority of all the electors 
voting at such election, in each of said counties; but any county 
now or hereafter containing one hundred thousand inhabitants, 
may be divided, whenever a majority of the voters residing in 
each of the proposed divisions shall approve of the law passed 
for that purpose; but no town or city within the same shall be 


Art.II, § 29. 


No extra com¬ 
pensation. 


New counties. 



216 


Art.II, § 31. 


Compensation of 
members and offi¬ 
cers of the gen¬ 
eral assembly. 


Divorces and ju¬ 
dicial power. 


CONSTITUTION OF THE STATE OF OHIO OF 1851. 


divided, nor shall either of the divisions contain less than twenty 
thousand inhabitants. (See Const. 1802 , Art. VII, § 3.) 

For proposed renumbering' of this section, see 98 v. 412. 

See Const. 1802, Art. VII, § 3. 

The power to make new counties, and to change county lines, existed 
under the former constitution: State, ex rel., v. Choate, 11 O. 511. 

The act to erect the county of Noble, passed March 11, 1851, is not 
inconsistent with this constitiTtion, nor repealed by it, State, ex rel., v. 
Dudley, 1 O. S. 437. Nor does the act of March 29, 1866 (63 v. 58), “to 
provide for the removal of the seat of justice of Wood county,” contra¬ 
vene this provision: Peck v. Weddell, 17 O. S. 271; Powers v. Reed, 19 
O. S. 189. See Art. II, § 28, note 2. 

The law fixing salaries in its specific county which is to take effect, 
if approved by a majority of the voters in such county, is unconstitu¬ 
tional: State, ex rel., v. Garver, 66 O. S. 555 [reversing State, ex rel., v. 
Garver, 13 O. C. D. 140]. 

2 Debates, 210, 211, 220, 240, 318, 574-581, 590, 633, 634, 653, 663, 664, 
808, 832, 858, 870. 


Section 31. The members and officers of the general as¬ 
sembly shall receive a fixed compensation, to be prescribed by 
law, and no other allowance or perquisites, either in the payment 
of postage or otherwise; and no change in their compensation 
shall take effect during their term of office. 

For proposed renumbering of this section, see 98 v. 419 
Referred to: Ward v. Board of Education, 21 O. C. C. 699, 11 O. C. D. 

671. 

1 Debates, 293-297; 2 Debates, 211-214, 318, 634, 653, 663, 664, 808, 
833, 858, 870. 


Section 32. The general assembly shall grant no divorce, 
nor exercise any judicial power not herem expressly conferred. 

For proposed renumbering of this section, see 98 v. 412. 


I. Cited. III. Exercise of judicial power. 

II. Divorce. 

I. CITED. 

State, ex rel., v. Hawkins, 44 O. S. 98; State, ex rel., v. Guilbert, 75 
O. S. 1. 


II. DIVORCE. 

The constitution of 1802 contained no such prohibition; but, in 
Bingham v. Miller, 17 O. 445, it was held that the legislature had no 
power, by a special act, to grant a divorce, that being the exercise of a 
judicial, not a legislative function—a function not granted to the leg- 
for more than forty years to avoid the consequences which would 
islature by the constitution; but that body having exercised the power 
court would pronounce them valid. 

It may be of interest to the general reader to note, in passing, that 
result from declaring all those void which had been granted by the 
legislature—rendering illegitimate the issue of second marriages—the 
in the early history of the state the general assembly itself exercised 
the power to grant divorces, one instance being found in 2 O. L. 67, 
where Hannah Willis was granted a divorce from Isaac. Doubtless 
many others will be found in subsequent volumes. This pernicious 
practice was continued at intervals until 1848, when this court, by the 
decision in Bingham v. Miller, 17 O. 445, set its seal of condemnation 
upon it, which was followed by a provision in the constitution of 1851, 
Art. II, § 32, absolutely prohibiting it. It is to be remarked as an 
instance of the confusion pervading the legislative mind, resnecting 
the division of the powers of government, that, having by the first act 
passed by that body on the subject, conferred upon the supreme court 
sole cognizance of granting divorces, and given to that court like 
exclusive jurisdiction by subsequent acts, the general assembly should 
itself continue to assume jurisdiction of the subject, and from time 
to time divorce mismated couples: Dewitt v. Dewitt, 67 O. S. 340. 




217 


CONSTITUTION OF THE STATE OF OHIO OF 1851 


IIT. EXERCISE OF JUDICIAL POWER. 

The authority conferred on the senate to try contested elections for 
judges, is not judicial power within the meaning of § 1, Art. IV, of the 
constitution, which requires the judicial power of the state to be vested 
in the courts; nor within the meaning of this section, which restricts 
the exercise of judicial power by the general assembly: State, ex rel., 
V. Harmon, 31 O. S. 250. 

Statutes establishing methods of determining questions arising in 
contested elections, do not contravene this section: Stearns v. Taylor, 
1 O. N. P. 23, 1 O. D. (N.P.) 136. 

The act of February 6, 1871 (68 v. 17; G. C. § 12194), giving sureties 
in a judgment, certified as such therein, all the rights and remedies 
against the principal debtor that the plaintiff had at the time of the 
payrnent by the surety, is not the exercise of judicial functions, but is 
within the legislative powers of the general assembly: Peters v. 
IMcWilliams, 3'6 O. S. 155. 

A statute which declares existing school districts to be legal and 
valid, even if they have been created by invalid special legislation, is 
unconstitutional: Bartlett v. State, 73 O. S. 54. 

A statute for the relief of county officials is not legislative inter¬ 
ference with the judgment of a court: State, ex rel., v. Gibson, 4 O. C. C. 
(N.S.) 433, 16 O. C. D. 784 [affirming State, ex rel., v. Gibson, 2 O. N. P. 
(N.S.) 221, 15 O. D. (N.P.) 731. 

The senate joint resolution passed by the general assembly Feb¬ 
ruary 14, 1908, providing for the appointment of a committee to inves¬ 
tigate charges of corruption in the government of the city of Cincinnati 
and county of Hamilton, is an exercise of judicial power not expressly 
conferred by the constitution, and a gross violation of this section 
thereof, unless it can be justified on the ground of seeking information 
in aid of intended legislation: State, ex rel., v. Gayman, 11 O. C. C. (N.S.) 
257, 21 O. C. D. 59. 

The enactment by the general assembly of a law which changes the 
policy of the state in regard to matters under governmental control, is 
not the exercise of judicial powers by the legislature, and does not fall 
within the inhibition of this section: Hume v. Traction Co., 13 O. D. 
(N.P.) 70. 

The commission on fees has no judicial power, and, therefore, fees 
due to the auditor and treasurer of Hamilton county are not binding: 
State, ex rel., v. Richardson, 7 O. L. R. 269. 

A statute which provided for the recovery of damages against a 
county for injuries due to mob violence was held to be unconstitutional 
in the common pleas court in Mitchell v. Commissioners, 5 O. N. P. 158, 
5 O. D. (N.P.) 262. This case was, however, reversed in Mitchell v. 
Commissioners, 20 O. C. C. 660, 10 O. C. D. 801, which was affirmed in 
Commissioners v. Church, 62 O. S. 318. 

1 Debates, 164, 258, 259; 2 Debates, 164, 318, 568, 633, 664, 808, 833, 858, 

870. 


Section 33 . Laws may be passed to secure to mechanics, 
artisans, laborers, sub-contractors and material men, their just 
dues by direct lien upon the property, upon which they have 
bestowed labor or for which they have furnished material. No 
other provision of the constitution shall impair or limit this 
power. (Adopted September 3, 1912.) 

Vote: “Yes,” 278,582; “No,” 242,385. 


Section 34 . Laws may be passed fixing and regulating 
the hours of labor, establishing a minimum wage, and providing 
for the comfort, health, safety and general welfare of all eny 
ployes; and no other provsion of the constitution shall impair 
or limit this power. (Adopted September 3, 1912.) 

Vote: “Yes,” 353,588; “No,” 189,728. 

Section 35 . For the purpose of providing compensation to 
workmen and their dependents, for death, injuries or occupa¬ 
tional disease, occasioned in the course of such workmen’s em¬ 
ployment, laws may be passed establishing a state fund to be 
created by compulsory contribution thereto by employers, and 


Art.II, § 33. 


Mechanics’ and 
builders’ liens. 


Welfare of 
employes. 


Workmen’s 

compensation. 




Art.II, § 36. CONSTITUTION OF THE STATE OP OHIO OP 1851. 


Conservation of 
natural resources. 


Eight hour day 
on public work. 


Removal of 
officials. 


Regulating expert 
testimony in 
criminal trials. 


Registering and 
warranting land 
titles. 


administered by the state determining the terms and conditions 
upon which payment shall be made therefrom, and taking away 
any or all rights of action or defenses from employes and em¬ 
ployers ; but no right of action shall be taken away from any 
employe when the injury, disease or death arises from failure of 
the employer to comply with any lawful requirement for the 
protection of the lives, health and safety of employes. Laws 
may be passed establishing a board which may be empowered 
to classify all occupations, according to their degree of hazard, 
to fix rates of contribution to such fund according to such 
classification, and to collect, administer and distribute such fund, 
and to determine all rights of claimants thereto. (Adopted Sep¬ 
tember 3, 1912.) 

Vote: “Yes,” 321,558; “No,” 211,772. 

Section 36. Laws may be passed to encourage forestry, 
and to that end areas devoted exclusively to forestry may be 
exempted, in whole or in part, from taxation. Laws may also 
be passed to provide for converting into forest reserves such 
lands or parts of lands as have been or may be forfeited to the 
state, and to authorize the acquiring of other lands for that 
purpose; also, to provide for the conservation of the natural 
resources of the state, including streams, lakes, submerged and 
swamp lands and the development and regulation of water power 
and the formation of drainage and conservation districts; and 
to provide for the regulation of methods of mining, weighing, 
measuring and marketing coal, oil, gas and other minerals. 
(Adopted September 3, 1912.) 

Vote: “Yes,” 318,192; “No,” 191,893. 

Section 37. Except in cases of extraordinary emergencies, 
not to exceed eight hours shall constitute a day’s work, and 
not to exceed forty-eight hours a week’s work, for workmen 
engaged on any public work carried on or aided by the state, 
or any political sub-division thereof, whether done by contract, 
or otherwise. (Adopted September 3, 1912.) 

Vote: “Yes,” 333,307; “No,” 232,898. 

Section 38. Laws shall be passed providing for the prompt 
removal from office, upon complaint and hearing, of all officers, 
including state officers, judges and members of the general 
assembly, for any misconduct involving moral turpitude or for 
other cause provided by law; and this method of removal shall 
be in addition to impeachment or other method of removal au¬ 
thorized by the constitution. (Adopted September 3, 1912.) 

Vote: “Yes,” 347,333; “No,” 185,986. 

Section 39. Laws may be passed for the regulation of the 
use of expert witnesses and expert testimony in criminal trials 
and proceedings. (Adopted September 3, 1912.) 

Vote: “Yes,” 336,987; “No,” 185,458. 

Section 40. Laws may,be passed providing for a system 
of registering, transferring, insuring and guaranteeing land 
titles by the state or by the counties thereof, and for settling and 




219 


CONSTITUTION OF THE STATE OF OHIO OF 1851 . Art.II, § 41. 


determining adverse or other claims to and interests in, lands 
the titles to which are so registered, insured or guaranteed, and 
for the creation and collection of guaranty funds by fees to be 
assessed against lands, the titles to which are registered; and 
judicial powers with right of appeal may by law be conferred 
upon county recorders or other officers in matters arising under 
the operation of such system. (Adopted September 3, 1912.) 

Vote: “Yes,” 346,373; “No,” 171,807. 

Section 41. Laws shall be passed providing for the occu- Abolishing prison 
pation and employment of prisoners sentenced to the several 
penal institutions and reformatories in the state; and no person 
in any such penal institution or reformatory while under sentence 
thereto, shall be required or allowed to work at any trade, 
industry or occupation, wherein or whereby his work, or the 
product or profit of his work, shall be sold, farmed out, con¬ 
tracted or given away; and goods made by persons under sen¬ 
tence to any penal institution or reformatory without the State 
of Ohio, and such goods made within the State of Ohio, except¬ 
ing those disposed of to the state or any political subdivision 
thereof or to any public institution owned, managed or controlled 
by the state or any political sub-division thereof, shall not be 
sold within this state unless the same are conspicuously marked 
“prison made.” Nothing herein contained shall be construed to 
prevent the passage of laws providing that convicts may work 
for, and that the products of their labor may be disposed of to, 
the state or any political sub-division thereof, or for or to any 
public institution owned or managed and controlled by the‘state 
or any political sub-division thereof. (Adopted September 3, 

1912.) 

Vote; “Yes,” 333,304; “No,” 215,208. 


ARTICLE III. 

EXECUTIVE. 

Section 1. The executive department shall consist of a Executive de- 
governor, lieutenant governor, secretary of state, auditor of 
state, treasurer of state, and an attorney general, who shall be 
elected on the first Tuesday ofter the first Monday in Novem¬ 
ber, by the electors of the state, and at the places of voting for 
members of the general assembly. (As amended October 13, 

1885; 82 V. 446.) 

Amended, October 13, 1885, 82 O. L. 446. 

As to time for holding elections, see Art. XVII, § 1. 

Original § 1 read as follows: “Sec. 1. [Executive department.] 

The executive department shall consist of a governor, lieutenant-gov¬ 
ernor, secretary of state, auditor, treasurer, and an attorney-general, 
w'ho shall be chosen by the electors of the state, on the second Tuesday 
of October, and at the places of voting for members of the general 
assembly.” (See Const. 1802, Art. II, §§ 2, 16; Art. VI, §2.) 

Cited: State v. Barbee, 45 O. S. 347. 

1 Debates, 299-302, 313, 323-327; 2 Debates, 287, 289, 293, 294, 331-333, 

349, 808, 834, 859, 870. 


Section 2. The governor, lieutenant governor, secretary Term of office, 
of state, treasurer, and attorney general shall hold their offices 



220 


Art.III, § 3 . CONSTITUTION OF THE STATE OF OHIO OF 1851 . 


for two years; and the auditor for four years. Their terms of 
office shall commence on the second Monday of January next 
after their election, and continue until their successors are elected 
and qualified. {See Const. 1802, Art. II, §§ 3, 16.) 

See Const. 1802, Art. II, §§ 3, 16. 

For term of office under constitutional amendment, see Art. XVII, 
§§ 1, 2 and 3, and cases cited thereunder. 

Cited by mistake: Jiha v. Barry, 3 O. N. P. (N.S.) 65, 16 O. D. 
(N.P.) 33. 

1 Debates, 300, 306, 323-326, 335, 336; 2 Debates, 287, 289, 293, 349, 808, 
834, 835, 859, 870. 

Election returns. SECTION 3. The retums for every election for the officers 

named in the foregoing election shall be sealed up and trans¬ 
mitted to the seat of government, by the returning officers, di¬ 
rected to the president of the senate, who, during the first week 
of the session, shall open and publish them, and declare the 
result, in the presence of a majority of the members of each 
house of the general assembly. The person having the highest 
number of votes shall be declared duly elected; but if any two 
or more shall be highest, and equal in votes, for the same office, 
one of them shall be chosen by the joint vote of both houses. 
{See Const. 1802, Art. II, § 2.) 

See Const. 1802, Art. II, § 2. 

The seventeenth article requires that the executive officers of the 
state be elected in November of the even numbered years; the second 
section of the third article provides that their terms of office shall 
commence on the second Monday of January next after their election, 
and § 3, of Art. Ill, that the returns of their election, having been trans¬ 
mitted to the president of the senate, shall during the first Aveek of the 
session be opened and published and the result declared “in the presence 
of a majority of the members of each house.” These sections relate 
to the orderly conduct of the government of the state, and they imper¬ 
atively and expressly required the general assembly to be in session 
during the first week of the present year: State, ex rel., v. Creamer, 
83 O. S. 412. 

1 Debates, 300, 306, 324; 2 Debates, 287, 808, 835, 859, 870. 

Same subject. SECTION 4. Should there be no session of the general as¬ 

sembly in January next after an election for any of the officers 
aforesaid, the returns of such election shall be made to the sec¬ 
retary of state, and opened, and the result declared by the gov¬ 
ernor, in such manner as may be provided by law. 

2 Debates, 349, 808, 835, 859, 870. 

vSed^’ln Section 5. The supreme executive power of this state 

ernor. shall be Vested in the governor. {See Const. 1802, Art. II, § i.) 

See Const. 1802, Art. II, § 1. 

Although the governor, in the exercise of the supreme executive 
power of the state, may, from the nature of his authority, have a dis¬ 
cretion which can not be controlled by judicial power, yet, in regard to 
a ministerial act which might have devolved on any other officer of the 
state, and affecting any specific private right, he may be made amen¬ 
able to the compulsory process of the supreme court: State, ex rel., v. 
Chase, 5 O. S. 528. 

“Under our system of government, no officer is placed above the 
restraining authority of the law, which is truly said to be universal in 
its behests—‘all paying it homage, the least as feeling its care, and the 
greatest as not exempt from its power.’ The judicial power can not 
interpose and direct in regard to the performance of an official act 
which rests in the discretion of any officer, whether executive, legisla¬ 
tive or judicial. The constitutional provision declaring that the ‘su¬ 
preme executive power of this state shall be vested in the governor,’ 
clothes the governor with important political powers, in the exercise of 
which he uses his own judgment or discretion, and in regard to which 
his determinations are conclusive. But there is nothing in the nature of 



221 


CONSTITUTION OF THE STATE OP OHIO OP 1851 . Art.III, § 6. 


the chief executive office of this state, which prevents the performance 
of some duties merely ministerial being enjoined on the governor. While 
the authority of the governor is supreme in the exercise of his political 
and executive functions, which depend on the exercise of his own judg¬ 
ment or discretion, the authority of the judiciary of the state is supreme 
in the determination of all legal questions involved in any matter 
judicially brought before it. Although the state can not be sued, there 
is nothing in the nature of the office of governor which prevents the 
prosecution of a suit against the person engaged in discharging its 
duties”; State, ex rel., v. Chase, 5 O. S. 528. 

Under this section and the laws of the United States, the governor 
has authority to issue requisitions in cases of misdemeanors: State v 
Hudson, 2 O. N. P. 1, 2 O. D. (N.P.) 41. 

1 Debates, 299, 302; 2 Debates, 80*8, 835, 859, 870. 


Section 6 . He may require information, in writing, from He may require 
the officers in the executive department, upon any subject relat- 
ing to the duties of their respective offices; and shall see that 
the laws are faithfully executed. (See Const. 1802, Art. II, 

§ 7 -) 

See Const. 1802, Art. II, § 7. 

Cited: State v. Hudson, 2 O. N. P. 1, 2 O. D. (N.P.) 41. 

1 Debates, 300, 306; 2 Debates, 808, 835, 859, 870. 

Section 7. He shall communicate at every session, by mes- He shall recom- 
sage, to the general assembly, the condition of the state, and rec- measures, 

ommend such measures as he shall deem expedient. (See Const. 

1802, Art. II, § 4.) 

See Const. 1802, Art. II, § 4. 

1 Debates, 300, 306, 324; 2 Debates, 287, 808, 835, 859, 870. 


Section 8 . The governor on extraordinary occasions may Limiting power of 
convene the general assembly by proclamation and shall state in fn^eKtra^SSoif 
the proclamation the purpose for which such special session is 

called, and no other business shall be transacted at such special 

session except that named in the proclamation, or in a subse¬ 

quent public proclamation, or message to the general assembly 
issued by the governor during said special session, but the 
general assembly may provide for the expenses of the session 
and other matter incidental thereto. (As amended September 

3. 1912.) 

Vote: “Yes,” 319,100; “No,” 192,130. 

Original § 8 read as follows: ‘‘Sec. 8. [When and how he may con- When and how 

vene the general assembly.] He may, on extraordinary occasions, con- he may convene 

vene the general assembly by proclamation, and shall state to both the general 
houses, when assembled, the purpose for which they have been con- assembly. Limit- 

vened. (See Const. 1802, Art. Il, §9.)” ing power of 

general assembly 

See Const. 1802, Art. II, § 9. in extra session. 

The authority of the governor to convene the general assembly by 
proclamation is conferred by the eighth section of the third article and 
by its terms the authority is expressly limited to ‘‘extraordinary occa¬ 
sions.” We should pay no sincere deference to the constitution or to 
the plain meaning of its terms, if we should hold those occasions to be 
extraordinary for whose unfailing return at regular intervals the 
constitution makes elaborate and careful provisions. In many respects 
constitutions do not execute themselves and the enactment of § 35, of 
the General Code pursuant to whose provisions the legislature convened 
in regular session was a wise precaution to avoid doubts that might 
have arisen, but for its enactment. It may have been unnecessary, but 
we perceive no warrant whatever for saying that it is unconstitutional: 

State, ex rel., v. Creamer, 83 O. S. 412. 

1 Debates, 300, 306, 324, 336; 2 Debates, 287, 288, 808, 835, 859, 870. 





222 


Art.III, § 9. 


When he may 
adjourn the gen¬ 
eral assembly. 


Commander-in- 
chief of militia. 


May grant re¬ 
prieves, commu¬ 
tations, and par¬ 
dons. 


CONSTITUTION OF THE STATE OP OHIO OF 1851 . 


Section 9. In case of disagreement between the two 
houses, in respect to the time of adjournment, he shall have power 
to adjourn the general assembly to such time as he may think 
proper, but not beyond the regular meetings thereof. (See Const. 
i 8 o 2 . Art. II, § II.) 

See Const. 1802, Art. II, § 11. 

1 Debates, 300, 306, 324; 2 Debates, 288, 808, 835, 859, 870. 


Section 10. He shall be commander-in-chief of the mil¬ 
itary and naval forces of the state, except when they shall be 
called into the service of the United States. (See Const. 1802, 
Art. II, § 10.) 

See Const. 1802, Art. II, § 10. 

Cited: Hubbard v. Fitzsimmons, 57 O. S. 436; State, ex rel., v. Brink- 
man, 7 O. C. C. 165, 3 O. C. D. 710. 

1 Debates, 300, 306; 2 Debates, 808, 835, 859, 870. 


Section 11. He shall have power, after conviction, to 
grant reprieves, commutations, and pardons, for all crimes and 
offenses, except'treason and cases of impeachment, upon such 
conditions as he may think proper; subject, however, to such 
regulations, as to the manner of applying for pardons,, as may be 
prescribed by law. Upon conviction for treason, he may sus¬ 
pend the execution of the sentence, and report the case to the 
general assembly, at its next meeting, when the general assembly 
shall either pardon, commute the sentence, direct its execution, 
or grant a further reprieve. He shall communicate to the gen¬ 
eral assembly, at every regular session, each case of reprieve, 
commutation, or pardon granted, stating the name and crime of 
the convict, the sentence, its date, and the date of the com¬ 
mutation, pardon, or reprieve, with his reasons therefor. (See 
Const. 1802, Art. II, § 5.) 

See Const. 1802, Art. 11, § 5. 

The act of February 1, 1853 (G. C. §§ 11174-11176), giving' to parties 
imprisoned for nonpayment of fines the benefit of laws for the relief of 
insolvent debtors, and authorizing their discharge as such, is not an 
attempt to place the pardoning power in hands other than those of the 
governor of the state. It is merely a modification of penalties prescribed 
for certain offenses, and is not in conflict with the constitution: 
Scott, Ex parte, 9 O. S. 581. 

A pardon does not release the uncollected costs, but the governor 
has the power to do so: Libby v. Nicola, 21 O. S. 414. 

The governor, by virtue of the provisions of this section, is author¬ 
ized, of his own motion, to reprieve or suspend, for a specified interval 
of time, the execution of a prisoner under sentence of death: Sterling 
V. Drake, 29 O. S. 457. 

A full, unconditional pardon delivered, is irrevocable; and where a 
person imprisoned on a sentence for felony seeks a discharge by habeas 
corpus, based on such pardon having been issued by the governor pur¬ 
suant to the constitution and statute, on the certificate of the physician 
to the penitentiary, that the prisoner is in imminent danger of death, it 
is not competent in this state, under existing statutes, to impeach such 
pardon in such proceeding, by proof that the physician’s certificate was 
obtained by false representations of the prisoner, and his fraudulent 
acts with respect to his health, such representations having been made, 
and acts done, for the purpose of obtaining such certificate and such 
pardon: Knapp v. Thomas, 39 O. S. 377. 

The act of May 4, 1885 (82 v. 236, G. C. §§ 2169 and 2170), which 
authorizes the board of managers of the Ohio penitentiary to allow 
prisoners to go upon parole, is not in conflict with this section: State, 
ex rel., v. Peters, 43 O. S. 629, 

General Code § 12399, which provides that one who is convicted of 
murder in the first degree, shall not be recommended for pardon unless 
his innocence is established beyond a reasonable doubt, is valid and 




223 


CONSTITUTION OP THE STATE OP OHIO OP 1851 


constitutional, and does not affect or abridge the right of the governor 
to pardon: State v. Schiller, 70 O. S. 1; State v. Jones, 5 O. N. P. 390, 
8 O. D. (N.P.) 645. 

Under this section the governor may annex any reasonable condition 
to a pardon as he may see fit: Huff v. Dyer, 4 O. C. C. 595, 2 O C D 
727. 

The Beal law (see G. C. § 6127, et seq.) does not contravene this 
section by the permitting of the second election, for the fact that the 
second election was in favor of the sale would not absolve from an 
offense committed while the sale was prohibited: Lloyd v. Dollison, 
3 O. C. C. (N.S.) 328, 13 O. C. D. 571 [affirmed, without report. State, 
ex rel., v. Dollison, 68 O. S. 688]. 

By this section, the whole pardoning power, except as to treason 
and cases of impeachment, is vested in the governor exclusively, and can 
not be exercised directly or indirectly by any other authority: Jiha v 
Barry, 3 O. N. P. (N.S.) 65, 16 O. D. (N.P.) 33. 

1 Debates, 300, 306, 307, 324; 2 Debates, 288, 2f’3, 808, 835, 859, 870. 

Section 12. There shall be a seal of the state, which shall 
be kept by the governor, and used by him officially; and shall be 
called “The Great Seal of the State of Ohio.” (See Const. 1802, 
Art. II, § 14.) 

See Const. 1802, Art. II, § 14. 

1 Debates, 300, 307; 2 Debates, 808, 835, 859, 870. 

Section 13. All grants and commissions shall be issued 
in the name, and by the authority, of the state of Ohio; sealed 
with the great seal; signed by the governor, and countersigned 
by the secretary of state. (See Const. 1802, Art. II, § 15.) 

See Const. 1802, Art. IT, § 15. 

1 Debates, 300, 307; 2 Debates, 808, 835, 859, 870. 

Section 14. No member of congress, or other person 
holding office under the authority of this state, or of the United 
States, shall execute the office of governor, except as herein pro¬ 
vided. (See Const. 1802, Art. II, § 13.) 

See Const. 1802, Art. II, § 13. 

1 Debates, 300, 307; 2 Debates, 288, 808, 835, 859, 870. 

Section 15. In case of the death, impeachment, res¬ 
ignation, removal, or other disability of the governor, the pow¬ 
ers and duties of the office, for the residue of the term, or until 
he shall be acquitted, or the disability removed, shall devolve 
upon the lieutenant governor. (See Const. 1802, Art. II, § 12.) 

See Const. 1802, Art. II, § 12. 

The governor not having relinquished the duties of his office in view 
of a disability recognized by him, and there being no authorizea 
procedure to ascertain that a disability has intervened, it is not compe¬ 
tent upon an issue as to the valid enactment of a statute to show that 
upon the day of its presentation to him and for ten days thereafter he 
was, by reason of illness, disabled to receive or consider it, so as to give 
effect to the provision of the fifteenth section of the third article of the 
constitution, that in case of the disability of the governor the duties 
of his office shall devolve upon the lieutenant-governor: Wrede v. 
Richardson, 77 O. S. 182. 

1 Debates, 300, 307; 2 Debates, 331-333, 808, 835, 859, 870. 

Section 16. The lieutenant governor shall be president of 
the senate, but shall vote only when the senate is equally divided; 
and in case of his absence, or impeachment, or when he shall 
exercise the office of governor, the senate shall choose a presi¬ 
dent pro tempore. 

1 Debates, 300; 2 Debates, 293, 808, 835, 859, 870. 


Art.III, § 12. 


Seal of state, 
afid by whom 
kept. 


How grants and 
commissions is¬ 
sued. 


Who ineligible 
for governor. 


Who shall fill his 
place when 
vacancy occurs. 


Lieutenant- 

governor. 




224 

Art.III, § 17. CONSTITUTION OF THE STATE OF OHIO OF 1851. 


If vacancy shall SECTION 17. If the lieutenant governor, while executing 

Sg'^he%S:e* the office of governor, shall be impeached, displaced, resign or 
shafi^rct"^*^’ otherwise become incapable of performing the duties of 

the office, the president of the senate shall act as governor, 
until the vacancy is filled, or the disability removed; and if the 
president of the senate, for any of the above causes, shall be 
rendered incapable of performing the duties pertaining to the 
office of governor, the same shall devolve upon the speaker of the 
house of representatives, (See Const. 1802, Art. II, § 12.) 

See Const. 1802, Art. Il, § 12. 

1 Debates, 300; 2 Debates, 293, 331-333, 808, 809, 835, 859, 870. 


What vacancies SECTION 18. Should the office of auditor, treasurer, sec- 

governor o . qj. attorney general, become vacant, for any of the causes 

specified in the fifteenth section of this article, the governor shall 
fill the vacancy until the disability is removed, or a successor 
elected and qualified. Every such vacancy shall be filled by 
election, at the first general election that occurs more than thirty 
days after it shall have happened; and the person chosen shall 
hold the office for the full term fixed in the second section of 
this article. 

As to filling- vacancies, see Art. XVII, § 2. 

Cited: State, ex rel., v. Harmon, 31 O. S. 250; State v. Barbee, 45 O. 
S. 347; State, ex rel., v. Nash, 66 O. S. 612; State, ex rel., v. Metcalfe, 80 
O. S. 244. 

The duty and power of making appointment to fill a vacancy in the 
office of lieutenant-governor is not specially conferred on the executive 
branch of the government by the constitution, and rests wherever the 
legislature may vest it. (Art. II, § 27.) Such duty being imposed on the 
governor by statute it is not an executive function but is a ministerial 
duty: State, ex rel., v. Nash, 66 O. S. 612. 

There is no provision in the constitution for filling a vacancy in 
the office of lieutenant-governor, except as authorized under Art. II, 
. §27; and when such vacancy occurs it must in all cases be filled by 

appointment by the governor as provided in G. C. § 141^ 

The term of office of such appointee shall be for the unexpired por¬ 
tion of the term and until his successor is elected and qualified as 
provided in G. C. § 10; and “the first proper election” is the first election 
at which a lieutenant-governor would have been chosen had no such 
vacancy occurred; State, ex rel., v. Nash, 66 O. S. 612. 

1 Debates, 300, 323-336; 2 Debates, 289, 290, 349, 809, 835, 859, 870. 


Compensation, SECTION 19. The officers mentioned in this article shall, 

at stated times, receive for their services, a compensation to be 
established by law, which shall neither be increased nor dimin¬ 
ished during the period for which they shall have been elected. 
(See Const. 1802, Art. I, § 19.) 

See Const. 1802, Art. I, § 19. 

Cited: Ward v. Board of Education, 21 O. C. C. 699, 11 O. C. D. 671. 

1 Debates, 300, 313-324; 2 Debates, 288, 289, 291, 293, 349, 809, 835, 
859, 870. 


Officers to report SECTION 20. The officers of the executive department, and 

public State institutions shall, at least five days preceding 
each regular session of the general assembly, severally report 
to the governor, who shall transmit such reports, with his mes¬ 
sage to the general assembly. 

Cited: State, ex rel., v. Kilgour, 8 O. N. P. (N.S.) 617, 19 O. D. (N.P.) 

670. 

Cited by mistake: State, ex rel., v. Carlisle, 3 O. N. P. (N.S.) 544. 
2 Debates, 293, 809, 835, 859, 870. 




225 


CONSTITUTION OF THE STATE OF OHIO OF 1851 . 


ARTICLE IV. 

JUDICIAL. 

Section 1 . The judicial power of the state is vested in a 
supreme court, courts of appeals, courts of common pleas, courts 
of probate, and such other courts inferior to the courts of 
appeals as may from time to time be established by law. (As 
amended September 3, 1912.) 

Vote: “Yes,” 264,922; “No,” 244,375. 

See constitution of 1802, Art. Ill, § 1. 

This section as amended October 9, 1883, 80 v. 382, read as follows: 
“Sec. 1. [In whom judicial power vested.] The judicial power of the 
state is vested in a supreme court, circuit courts, courts of common 
pleas, courts of probate, justices of the peace, and such other courts 
inferior to the supreme court, as the general assembly may from time 
to time establish.” 

Original § 1 read as follows: “Sec. 1. [In whom judicial power 
vested.] The judicial power of the state shall be vested in a supreme 
court, in district courts, courts of common pleas, courts of probate, 
justices of the peace, and such other courts, inferior to the supreme 
court, in one or more counties, as the general assembly may, from time 
to time, establish.” 


I. Cited. III. Constitutionality of statutes. 

II. What constitutes judicial IV. Supreme court, 
power. • V. Inferior courts. 

I. CITED. 

Bank, Ex parte, 1 O. S. 432; Steamboat Northern Indiana v. Millikin, 
7 O. S. 384; State, ex rel., v. Supervisors of Elections, 80 O. S. 471; 
Stearns v. Taylor, 1 O. N. P. 23, 1 O. D. (N.P.) 136; Cummings v. 
Dougherty, 1 O. D. (N.P.) 231; State v. Voris, 8 O. N. P. 16, 10 O. D. 
(N.P.) 451; Baseball Co. v. Lajoie, 13 O. D. (N.P.) 504; In re Clayton, 
13 O. D. (N.P.) 546; Fitzgerald v. Realty and Loan Co., 19 O. D. (N.P.) 
399; Bank v. Buckingham’s Executors, 46 U. S. (5 How.) 410, 2 O. F. D. 
473. 


II. WHAT CONSTITUTES JUDICIAL POWER. 

The authority conferred on the senate to try contested elections is 
not judicial power within the meaning of this section, which requires the 
judicial power of the state to be vested in the courts: State, ex rel., v. 
Harmon, 31 O. S. 250. 

The act of May 4, 1885 (82 v. 236, G. C. § 2169), which authorizes 
the board of managers of the Ohio penitentiary to allow prisoners to 
go upon parole, is not in conflict with Art. IV, § 1, of the constitution 
of Ohio: State, ex rel., v. Peters, 43 O. S. 629. 

The power conferred on the governor of the state, by § 1872 (re¬ 
pealed, 96 V. 96, § 231), of the Revised Statutes, to remove any member 
of the board of police commissioners for official misconduct, is admin¬ 
istrative and not judicial: State, ex rel., v. Hawkins, 44 O. S. 98. 

The imprisonment of a witness by a notary public for refusing to 
answer a question is not judicial power and is valid: DeCamp v. Archi¬ 
bald, 50 O. S. 618. 

Where no obligation, legal or moral, rests upon a board of education, 
to pay a claim asserted against it by a private individual, an act of the 
general assembly, procured by the claimant, commanding such board to 
levy a tax for its payment, is unconstitutional and void. In such case, 
if the board of education disputes the facts asserted by the claimant as 
the foundation of his claim, the general assembly, while it may make 
inquiry to ascertain, in the first instance, the truth of the facts so 
asserted, yet it is without authority to conclusively find and recite in the 
act providing relief, the facts in dispute, so as to estop the board of 
education from contesting them in a court of justice where the act is 
sought to be enforced: Board of Education v. State, 51 O. S. 531. 

The appointment of annexation commissioners who are to make 
terms, etc., with the villages annexed, by the court of common pleas, 
does not violate this section or § 4, Art. IV: State, ex rel., v. Cincinnati, 
52 O. S. 419. 

An act which confers upon the county recorder the powers among 
which he is to enter evidence furnished by the agreement of the parties, 
that a lien has been discharged, or that it has become void by lapse of 
time, etc., but also to apply rules of evidence, interpret statute of 


Art.IV, § 1. 


In whom judicial 
power vested. 






226 


Art.IV, § 1 . CONSTITUTION OP THE STATE OP OHIO OP 1851 . 


limitations, etc., and to make an entry having- the same effect, upon 
the rights of adverse parties as a decree in equity, confers judicial 
powers and contravenes this section: State, ex rel., v. Guilbert, 56 
O. S. 575. 

The power given a board to regulate the practice of medicine in 
the state is administrative and not judicial: France v. State, 57 O. S. 1. 

A state which provides that counties shall be liable for mob 
violence, does not violate this constitutional provision: Commissioners 
V. Church, 62 t). S. 318 [affirming Mitchell v. Commissioners, 20 O. C. C. 
660, 10 O. C. D. 801, which reversed Mitchell v. Commissioners, 5 

O. N. r. 158, 5 O. D. (N.P.) 262; and reversing Caldwell v. Commis¬ 
sioners, 15 O. C. C. 167, 8 O. C. D. 56, which affirmed Caldwell v. 

Commissioners, 4 O. N. P. 249, 6 O. D. (N.P.) 367]. 

The legislature authorize a county to pay a demand which in 

good conscience it ought to pay, although the supreme court, without 
deciding the claim to be illegal, has enjoined the county from paying 
it: State, ex rel., v. Gibson, 4 O. C. C. (N.S.) 433, 16 O. C. D. 784 
[affirming State, ex rel., v. Gibson, 2 O. N. P. (N.S.) 221, 15 O. D. 
(N.P.) 73. 

A resolution of a board of health providing that all unwholesome 
milk be destroyed, does not contravene this section: Kaiser v. Walsh, 

4 O. N. P. (N.S.) 507, 17 O. D. (N.P.) 324. 

A statute which provides for the payment of jury commissioners 
(see G. C. § 11421, et seq.), does not violate this constitutional pro¬ 
vision: Geiger v. State, 2 O. C. C. (N.S.) 174, 15 O. C. D. 742. 

A statute which provides for detaching unplatted farm lands from 
a municipal corporation (see G. C. § 3578), does not confer legislative 
power upon the judiciary and is valid: Grover Hill v. McClure, 6 O. C, 
C. (N.S.) 197, 17 O. C. D. 376 [affirmed, without report, Grover Hill v. 
McClure, 72 O. S. 676]. 

The commission on fees is not a court. It is not intended to be a 
a part of our judicial system. It is rather a part of, and an assistant to, 
our legislative organ. Hence its finding is not binding on a county 
officer: State, ex rel., v. Richardson, 7 O. L. R. 269. 

The decision of a court of another state is conclusive on the courts 
of this state, in which land involved in the controversy is situated, when 
the title to the land is only indirectly or incidentally involved in the 
case determined in the foreign court; and the determination of an 
Illinois court as to the validity of an antenuptial contract in which 
the right to dower in Ohio real estate is involved is, therefore, conclusive 
when pleaded in an action here for the assignment of dower, and the 
same question between the same parties can not be relitigated here: 
Mettler v. Warner, 11 O. N. P. (N.S.) 363, 21 O. D. (N.P.) 184. 

III. CONSTITUTIONALITY OF STATUTES. 

It is the right and duty of the judicial tribunals to determine 
whether a legislative act, drawn in question in a suit pending before 
them, is opposed to the constitution of the United States, or of this 
state, and if so found, to treat it as a nullity: Railroad v. Commis¬ 
sioners, 1 O. S. 77. 

In such case the presumption is always in favor of the validity of 
the law; and it is only when manifest assumption of authority, and a 
clear incompatibility between the constitution and the law appear, that 
the judicial power will refuse to execute it: Armstrong v. Treasurer, 
10 O. 235; State, ex rel., v. Dudley, 1 O. S. 437; Cass v. Dillon, 2 O. S. 
607; Hill v. Higdon, 5 O. S. 243; Railroad v. Commissioners, 1 O. S. 77. 

While the court should be careful not to extend the powers of gov¬ 
ernment, by farfetched implication, it should be equally careful not to 
defeat the purpose of the constitution, by a narrow and unreasonable 
construction: Cass v. Dillon, 2 O. S. 607. 

A part of the statute may be void for want of conformity to the 
constitution, and the remainder valid. Whether or not the infirmity 
that avoids a part affects the entire act, depends upon the connection 
and dependence on each other of its various provisions. Where they 
are so inseparably connected in subject-matter, and so relate to each 
other as to give rise to a presumption that a part would not have been 
enacted without the whole, the entire act is void. But where no such 
connection or dependence exists, that part of the statute not itself in 
conflict with any constitutional provision, is as valid as if independently 
enacted: Railway v. Commissioners, 31 O. S. 338. 

As a general rule, one part of an act will not be held unconstitu¬ 
tional and another part constitutional, unless the respective parts are 
independent of each other. They must stand or fall together: State, 
ex rel., v. Commissioners, 5 O. S. 497. 

Parts of an enactment, when capable of separation, may be valid 
and effectual, when other parts may be void, by reason of repugnancy 
to a constitutional provision: Stevens v. State, 3 O. S. 453. 




227 


CONSTITUTION OP THE STATE OP OHIO OP 1851 . 


When the provisions are all parts of a single scheme, having a 
common object, and are interwoven with and dependent upon one 
another, if any are unconstitutional all must fall: Monroe v. Collins, 
17 O. S. 665. 

The rejection of some of the provisions of a statute, for unconsti¬ 
tutionality, will not vary the sense or meaning of its remaining provi¬ 
sions, which are to be construed as well in the light of those rejected 
as of those which remain: State v. Dombaugh, 20 O. S. 167. 

“The general and abstract question, whether an act of the legis¬ 
lature be unconstitutional, can not with propriety be presented to a 
court. The question must be, whether the act furnishes the rule to 
govern the particular case”: Foster v. Commissioners, 9 O. S. 540. 

Whatever inference might be drawn from the debates in the con¬ 
stitutional convention, every provision of the constitution should be 
construed agreeably to the import of its terms, as they may be fairly 
presumed to have been understood by the people whose ratification alone 
gave validity to the whole instrument: Lehman v. McBride, 15 O. S. 
573; see, also, Cass v. Dillon, 2 O. S. 607; Bank v. Hines, 3 O. S. 1; 
State, ex rel., v. Kennon, 7 O. S. 546. 

Courts can not nullify an act of legislation on the vague ground 
that they think it opposed to a general latent spirit, supposed to 
pervade or underlie the constitution, but which neither its terms nor 
its implications clearly disclose: W’'alker v. Cincinnati, 21 O. S. 14. 

The rule applicable to constitutions, as well as statutes, is that, 
where the language is clear, there is no room for construction; and the 
spirit of a provision must be extracted from its words, and not from 
conjectures aliunde: Wilcox v. Nolze, 34 O. S. 520. 

IV. SUPREME COURT. 

A statute which confers power upon the governor and the attorney- 
general to hear an appeal from the state medical board does not violate 
this section: State v. Ottman, 4 O. N. P. 195, 6 O. D. (N.P.) 265. 

The supreme court of the United States has appellate jurisdiction, 
in certain cases, over the courts of last resort in the several states: 
Bank v. Knoup, 6 O. S. 342; Skelly v. Bank, 9 O. S. 606. 

“Now, with respect to the boundary of jurisdiction between the fed¬ 
eral and state governments, I do not desire to say anything but this, 
that when congress has undertaken to enforce, by legislation, a right 
guaranteed by the constitution itself, and after the power has been 
recognized by all the highest judicial tribunals of the state of the Union 
before whom the question has been presented, has been acquiesced in 
by the country for sixty-six years, and, superadded to these circum¬ 
stances, the federal tribunal, in cases -arising under the constitution, 
has repeatedly held that congress has the power, it is too late for the 
judges of the courts of Ohio, upon their private judgment, to deny 
the po'^er. 

“Again, to maintain our right to do so, we must hold: 1. That we 
have the power under the constitution to determine this question in 
direct conflict with the settled interpretation of the supreme court of 
the United States. 2. That we have a right to maintain by the power 
of every department of the state government, our interpretation of the 
constitution, and to exact obedience thereto as well from the United 
States officers as from all the citizens of Ohio. 3. That this power, on 
our part, we have a right to fexercise, when it happens that a majority 
of our judges are intellectually satisfied, beyond any reasonable doubt 
upon their minds, from a review of the grounds upon which the federal 
tribunal and others adopted an interpretation of any provision of the 
constitution of the United States, that they were mistaken; 4, and 
lastly, as we must maintain that we have the judicial right to overrule 
their previous adjudications and enforce obedience to our own, which 
are in conflict with theirs, so, subsequent decisions on error, overruling 
ours, not being intellectually satisfactory to us we may, in the exercise 
of the same judicial right and power, disregard them. For the idea of 
first asserting the power to overrule their interpretation because we 
believe it erroneous, and afterward submitting to it, although still 
believing it erroneous, would be a most undignified and puerile assump¬ 
tion of temporary power, unworthy of a great state or its judicial tribu¬ 
nals, merely creating agitation, and ending in nothing but submission. 

“If the individual opinion of every judge is to become the exponent 
and construction of the constitution of the United States whenever he 
feels certain that he is right, without regard to the decisions of the 
highest tribunals of the country, then the individual opinion of every 
judge is the constitution, not only to himself, but for the time being 
to the country. This it seems to me is simply discretion without rule, 
guide, precedent or limitation—unstable, capricious despotism. 

“Is there any judicial incident more common than for a judge to 
deny himself the individual discretion of declaring what he thinks 
even the unwritten law of the land should be, and hold his judgment 


Art.IV, § 1. 




228 


Art.IV, § 2. 


The supreme 
court. 


CONSTITUTION OP THE STATE OP OHIO OP 1851 . 


amenable to the law as it has been decided? And is the constitution 
to be less stable than the unwritten law? Is a judge to treat the 
settled interpretation of the constitution, announced to' the country 
in a previous generation, by congress assuming to legislate, sanctioned 
by an unbroken current of judicial decisions, as of no binding judicial 
obligation, and to be overthrown by the authority of his individual 
convictions that the constitution should have a different interpretation? 
And if a state judge can thus, by his interpretation, alter the con¬ 
stitution when it has received such acquiescence and sanction, what 
provisions of the constitution, state or national, are safe from change 
and alteration, under the assumption of such judicial power? They 
would be written upon sand. 

“For myself, T disclairrKthe exercise of any such judicial discretion”: 
Ex parte Bushnell, 9 O. S. 77. 

V. INFERIOR COURTS. 

The legislature is empowered under this section to establish in¬ 
solvency courts in such counties as it may see fit, and provide for the 
jurisdiction of probate courts: State, ex rel., v. Bloch, 65 O. S. 370. 

The general assembly establishes a court -when it enacts that 
there shall be a court, fixes the number of judges, defines the juris¬ 
diction and prescribes the procedure to be followed therein; to do this 
requires a two-thirds vote, but a court may be abolished or its juris¬ 
diction or functions modified by a majority vote. The act of May, 1910, 
creating a municipal court for the city of Cleveland, received a two- 
thirds vote in the general assembly and was a valid enactment; and 
inasmuch as the amendatory act of 1911 did not attempt to create a new 
municipal court, but only modified in some respects a court already 
established, a majority vote was all that was necessary to render the 
enactment valid, and the original as so amended authorizes the ex¬ 
penditure of public funds: Mendelson v. Miller, 11 O. N. P. (N.S.) 586. 

Under this section the general assembly may create courts which 
are inferior to the supreme court, and may give to such courts juris¬ 
diction of minor offenses: Wells v. State, 1 O. N. P. (N.S.) 309, 14 
O. D. (N.P.) 196. 

See Art. IV, § 15. 

1 Debates, 430, 551, 584, 585, 606; 2 Debates, 369-371, 384, 385, 389, 
391, 392, 396, 401, 402, 483, 484, 668-674, 678-681, 685, 686, 687, 695-698. 
809, 835, 859, 870. 

Section 2 . The supreme court shall, until otherwise pro¬ 
vided by law, consist of a chief justice and six judges, and the 
judges now in office in that court shall continue therein until the 
end of the terms for which they were respectively elected, .unless 
they are removed, die or resign. A majority of the supreme 
court shall be necessary to constitute a quorum or to pronounce 
a decision, except as hereinafter provided. It shall have original 
jurisdiction in quo warranto, mandamus, habeas corpus, prohibi¬ 
tion and procedendo, and appellate jurisdiction in all cases in¬ 
volving questions arising under the constitution of the United 
States or of this state, in cases of felony on leave first obtained, 
and in cases which originated in the courts of appeals, and such 
revisory jurisdiction of the proceedings of administrative officers 
as may be conferred by law. It shall hold at least one term in 
each year at the seat of government, and such other terms, there 
or elsewhere, as may be provided by law. The judges of the 
supreme court shall be elected by the electors of the state at 
large for such term, not less than six years, as may be prescribed 
by law, and they shall be elected, and their official term shall 
begin, at such time as may now or hereafter be fixed by law. 
Whenever the judges of the supreme court shall be equally 
divided in opinion as to the merits of any case before them and 
are unable for that reason to agree upon a judgment, that fact 
shall be entered upon the record and such entry shall be held to 
constitute an affirmance of the judgment of the court below. No 
law shall be held unconstitutional and void by the supreme court 




229 


CONSTITUTION OF THE STATE OF OHIO OF 1851 . 


without the concurrence of at least all but one of the judges, 
except in the affirmance of a judgment of the court of appeals 
declaring a law unconstitutional and void. In cases of public 
01* great general interest the supreme court may, within such 
limitation of time as may be prescribed by law, direct any court 
of appeals to certify its record to the supreme court, and may 
review, and affirm, modify or reverse the judgment of the court 
of appeals. All cases pending in the supreme court at the time 
of the adoption of this amendment by the people, shall proceed 
to judgment in the manner provided by existing law. No law 
shall be passed or rule made whereby anv person shall be pre¬ 
vented from invoking the original jurisdiction of the supreme 
court. (As amended September 3, 1912.) 

Vote: “Yes,” 264,922; “No,” 244,375. 

See constitution of 1802, Art. Ill, § 2. 

This section as amended October 9, 1883, 80 v. 382, read as follows: 
“Sec. 2. [The supreme court.] The supreme court shall, until other¬ 
wise provide [provided] by law, consist of five judges, a majority of 
whom competent to sit shall be necessary to form a quorum or to 
pronounce a decision, except as hereinafter provided. It shall have 
original jurisdiction in quo warranto, mandamus, habeas corpus and 
procedendo, and such appellate jurisdiction as may be provided by law. 
It shall hold at least one term in each year at the seat of government, 
and such other ‘terms, there or elsewhere, as may be provided by law. 
The judges of the supreme court shall be elected by the electors of 
the state at large, for such term, not less than five years, as the 
general assembly may prescribe, and they shall be elected and their 
official term shall begin at such time as may be fixed by law. In case 
the general assembly shall increase the number of such judges, the 
first term of each of such additional judges shall be such, that in each 
year after their first election, an equal number of judges of the supreme 
court shall be elected, except in elections to fill vacancies; and when¬ 
ever the number of such judges shall be increased, the general assembly 
may authorize such court to organize divisions thereof, not exceeding 
three, each division to consist of an equal number of judges; for the 
adjudication of cases, a majority of each division shall constitute a 
quorum, and such an assignment of the cases to each division may be 
made as such court may deem expedient, but whenever all the judges* 
of either division hearing a case shall not concur as to the judgment 
to be rendered therein, or whenever a case shall involve the constitu¬ 
tionality of an act of the general assembly or of an act of congress, 
it shall be reserved to the whole court for adjudication. The judges 
of the supreme court in office when this amendment takes effect, shall 
continue to hold their offices until their successors are elected and 
qualified.” 

Original § 2 read as follows: “Sec. 2. [The supreme court.] The 
supreme court shall consist of five judges, a majority of whom shall be 
necessary to form a quorum, or to pronounce a decision. It shall have 
original jurisdiction in quo warranto, mandamus, habeas corpus, and 
procedendo, and such appellate jurisdiction as may be provided by law. 
It shall hold at least one term in each year, at the seat of government, 
and such other terms, at the seat of government, or elsewhere, as may 
be provided by law. The judges of the supreme court shall be elected 
by the electors of the state at large.” 

For term of office under constitutional amendment, see Art. XVII, 
§§ 2, 3. 

I. Cited. Ill* Appellate juri.sdiction. 

IT. Original jiiri.sdiction. 

I. CITED. 

Shepler v. Dewey, 1 O. S. 331; State, ex rel., v. Ganson, 58 O. S. 313; 
Gompf V. Wolfinger, 67 O. S. 144; State, ex rel., v. Pattison, 73 O. S. 305. 

II. ORIGINAL, JURISDICTION. 

The original jurisdiction of the supreme court is limited by the 
constitution to quo warranto, mandamus, habeas corpus and procedendo; 
Ex parte Bank, 1 O. S. 432; Kent v. Mahaffy, 2 O. S. 498. 

This is the only original jurisdiction granted by this instrument, 
and it would be wholly inconsistent with, and in a great measure 


Art.IV, § 2. 





230 


Art.IV, § 2 . CONSTITUTION OP TUB STATE OP OHIO OP 1851 . 


destructive of, the judicial system it ordains, to suppose that this 
original jurisdiction can be enlarged by law. It is true there Is no 
express prohibition against it, but none was necessary. The court can 
only exercise as the constitution itself confers, or authorizes the legis¬ 
lature to grant. It can derive no power elsewhere. The only jurisdiction 
that the legislature is authorized to confer upon the supreme court is 
appellate jurisdiction, for it can not be supposed that, by the general 
grant of legislative power in Art. II, of the constitution, the legislative 
authority to confer powers upon courts is extended beyond the authority 
vested in the assembly by the fourth or judicial article: Kent v. Mahaffy, 
2 O. S. 498. 

The power to grant ai> injunction in a case in the court of common 
pleas can not constitutionally be conferred on the supreme court: 
Kent V. Mahaffy, 2 O. S. 498; see, also, Griffith v. Commissioners, 20 O. 
609. 

Such power can not be conferred on a single judge of the supreme 
court sitting at chambers: Railway v. Hurd, 17 O. S. 144. 

The supreme court has no original jurisdiction, under the consti¬ 
tution, to hear and determine an action brought therein, to enjoin illegal 
taxes: Wheeler v. Lynn, 8 O. S. 393. 

The power of' the court is limited to the decision of such questions 

as properly arise, in the due course of law, in a judicial proceeding 

within its jurisdiction. In a proceeding in quo warranto to try the title 
of persons, to an office held under an act of the general assembly, when 

its validity is questioned, it is only such provisions of the act as affect 

the title to the office that are properly before the court: State v. 
Baughman, 38 O. S. 455. 

The extent of the jurisdiction in habeas corpus, as well as the 
manner of its exercise, is undoubtedly in some measure within legisla¬ 
tive control: Knapp v. Thomas, 39 O. S. 377. 

The court, though without original jurisdiction of suits for injunc¬ 
tions, may, in an original action in quo warranto to determine the 
right of rival boards to exercise official functions, grant an ancillary 
injunction to protect those having the prima facie right from inter¬ 
ference by other claimants during the pendency of such original action: 
State, ex rel., v. Board, 70 O. S. 341. 

For the power of the supreme court to grant an injunction as 
ancillary to its exercise of apellate jurisdiction, see Art. Ill, § 2. 

General Code § 1707, which expressly recognizes the original juris¬ 
diction of the supreme court in disbarment proceedings, does not con¬ 
travene this section: In re Thatcher, 80 O. S. 492. 

The grade crossing act (see G. C. § 8876, et seq.) is not invalid 
because it contains a separable provision conferring unconstitutional 
. powers on the circuit court, as this provision may be eliminated with¬ 
out effecting the purport and efficiency of the act: Cincinnati v. 
Railway, 19 O. D. (N.P.) 74. 

No specific provision for contesting the election of officers having 
been made by statute, quo warranto will lie to contest their election: 
State, ex rel., v. Conser, 5 O. C. C. (N.S ) 119, 14 O. C. D. 270. 

“The supreme court of this state in regular session has no more 
judicial power or discretion in determining questions which arise upon 
habeas corpus than a probate judge of the county”: Ex parte Bushnell, 
9 O. S. 77. 


III. APPELLATE JURISDICTION. 

The appellate jurisdiction of the supreme court extends only to the 
judgments and decrees of courts created and organized in pursuance 
of the provisions of the constitution. Therefore the appeal from the 
decision of the auditor of state, provided in the seventy-fourth 
section of the act of April 13, 1852 (50 v. 166) “for the assessment and 
taxation of all property in this state,” etc., is in conflict with the pro¬ 
visions of the constitution, from which the jurisdiction of the court is 
derived and hence can not be had: Ex parte Bank, 1 O. S. 432. 

A statute authorizing the reservation of a cause by a district court, 
or the supreme judge sitting therein, for decision by the supreme court, 
is constitutional: Chase v. Washburn, 2 O. S. 98. 

By the constitution and the act of February 19, 1852 (50 v. 67), for 
the organization of the courts, ample power was given to the supreme 
court to review a judgment of the former supreme court on the circuit: 
Groves v. Stone, 3 O. S. 576. 

The district and supreme courts are capable of receiving jurisdiction 
to review cases decided by themselves: Longworth v. Sturges, 4 O S 
690. 

The allowance of an injunction by the supreme court in a case on 
error, under this section, is not the exercise of original jurisdiction, 
but of appellate jurisdiction, and is intended only for the protection of 
the rights of the parties in the suit or matter under review. Where the 



231 


CONSTITUTION OP THE STATE OP OHIO OP 1851 . Art.IV, § 3 . 


judgment, for the reversal of which error is prosecuted, in the supreme 
court, is pleaded as an estoppel in another suit between the same parties, 
it is incompetent for this court to enjoin the prosecution of such suit 
until the case in error is determined: Yeoman v. Lasley, 36 O. S. 416. 

It is within the appellate jurisdiction of the supreme court to allow 
a temporary injunction where it appears that defendant is doing, or 
threatens to do, acts respecting the subject of an action pending, tend¬ 
ing to render the judgment ineffectual: Yeoman v. Lasley, 36 O. S. 416 
[followed and approved, Wagner v. Railway, 38 O. S. 32]. 

The court has not power to decide hypothetical cases: State v. 
Baughman, 38 O. S. 455. 

A rule of court can not deprive a party of a right conferred upon 
him by statute: Van Ingen v. Berger, 82 O. S. 255. 

If the court reverses a judgment, and then divides upon the question 
whether the accused should be remanded for retrial or should be dis¬ 
charged, three voting in favor of the discharge, two voting in favor of 
remanding for retrial and one not voting, he must be remanded for 
retrial: Ramprecht v. State, 84 O. S. 32. 

1 Debates, 430, 431, 551, 585-592, 606-608, 611, 616, 622-624, 627, 628, 
642, 651-655; 2 Debates, 353-357, 364-368, 384-391, 396, 400-402, 483, 484, 
668, 681, 685, 686, 694-698, 809, 835, 859, 860, 870. 


Section 3 . One resident judge of the court of common 
pleas, and such additional resident judge or judges as may be 
provided by law, shall be elected in each county of the state by 
the electors of such county; and as many courts or sessions of 
the court of common pleas as are necessary, may be held at the 
same time in any county. Any judge of the court of common 
pleas may temporarily preside and hold court in any county; 
and until the general assembly shall make adequate provision 
therefor, the chief justice of the supreme court of the state 
shall pass upon the disqualification or disability of any judge of 
the court of common pleas, and he may assign any judge to any 
county to hold court therein. (As amended September 3, 1912.) 

Vote: “Yes,” 301,891; “No,” 223,287. 

See constitution 1802, Art. Ill, § 3. 

The schedule to the twentieth proposition, which included 
Article IV, §§ 3, 7, 12 and 15, was as follows: 

If the foregoing amendment shall be adopted by the electors, 
the judges of the courts of common pleas in office, or elected 
thereto prior to January first, -1913, shall hold their offices for the 
term for which they were elected and the additional judges 
provided for herein, shall be elected at the general election in 
the year 1914; each county shall continue as a part of its existing 
common pleas district and sub-division thereof, until one resi¬ 
dent judge of the court of common pleas is elected and qualified 
therein. (Adopted September 3, 1912.) 

Vote: “Yes,” 264,922; “No,” 244,375. 

Original § 3 read as follows: “Sec. 3. [The common pleas.] The 
state shall be divided into nine common pleas districts, of which the 
county of Hamilton shall constitute one, of compact territory, and 
bounded by county lines; and each of said districts, consisting of three 
or more counties, shall be subdivided into three parts, of compact 
territory, bounded by county lines, and as nearly equal in population 
as practicable; in each of which, one judge of the court of common 
pleas for said district, and residing therein, shall be elected by the 
electors of said sub-division. Courts of common pleas shall be held, 
by one or more of these judges, in every county in the district, as 
often as may be provided by law; and more than one court, or sitting 
thereof, may be held at the same time in each district. (See Const. 
1802, Art. Ill, § 3.)” 


II. Common plea.s c1i.strict.s and 
judges. 


I. Cited. 



232 


Art.IV, § 4. CONSTITUTION OF THE STATE OF OHIO OF 1851 . 


I. CITED. 

Kelley v. State, 6 O. S. 269; State, ex rel., v. McCarty, 52 O. S. 363; 
Sipe V. State, ex rel., 86 O. S. 80. 

II. COMMON PLEAS DISTRICTS AND JUDGES. 

“To construe properly this provision, reference must be had to other 
parts of the constitution. It certainly can not mean that the number 
of the districts shall always continue to be nine, since power is g-iven to 
the general assembly to increase or diminish them (§ 15). It is'equally 
clear that it can not mean that the county limits shall always remain 
the same, as full power is given to change them and to make new 
counties (Art. II, § 30). To hold, on the other hand, that the limits of the 
districts must of necessity enlarge or diminish with the counties named 
as embraced in them, would be to say that Hamilton county, so reduced 
by division as to contain but twenty thousand inhabitants, would still 
constitute a district and be entitled to elect three judges. When taken 
in connection with the fact that the convention itself proceeded to make 
the division referred to in this section (see Art. XI, § 12), it is very 
clear to us that it must be regarded mainly as prescribing a rule for 
the government of their own action; and when they did act in accord¬ 
ance with it, and fixed the districts by definite boundaries, they must 
so remain, securing to all the citizens included within them their right 
of suffrage in such districts until changed by legislative enactment”: 
State, ex rel., v. Dudley, 1 O. S. 437. 

The subdivisions can be neither more nor less than three; District 
Court Case, 34 O. S. 431. 

While this section, among other limitations, may prohibit the divi¬ 
sion of a county, or placing totally disconnected counties in the same 
subdivision, yet, subject thereto, the territorial form of the new 
subdivision, and the relative population of each rests within the dis¬ 
cretion of the general assembly: State, ex rel., v. Jacobi, 52 O. S. 66. 

The judges of the courts of common pleas are judges of their 
respective districts, and not of the mere subdivision thereof. The sub¬ 
division of the districts is for election purposes merely: Harris v. Gest, 
4 O. S. 469. 

There is nothing in the constitution that forbids the holding of com¬ 
mon pleas courts in different counties of a subdivision at the same time: 
Harris v. Gest, 4 O. S. 469. 

For the effect of the change of the boundaries of a county upon 
the tenure of office of a judge who is thereby left outside of his former 
district, see State, ex rel., v. Choate, 11 O. 511; State, ex rel., v. Ailing, 
12 O. 16. 

A judge may serve out his term in a district in which he was elected, 
although he has become a nonresident of the district by the legislature 
attaching his county to another district, and providing that such judge 
should serve out his term: Editorial, 36 Bull. 301. 

1 Debates, 431, 590-655; 2 Debates, 357, 370, 379-381, 384, 387, 389, 390, 
396, 401, 402, 483-485, 681, 686, 695-698, 809, 835, 836, 860, 870. 

Their jurisdiction. SECTION 4. The jurisdiction of the courts of common 
pleas, and of the judges thereof shall be fixed by law. (See 
Const. i 8 o 2 , Art. Ill, §§ 3 , 4 , 5 , 6 .) 

See Const. 1802, Art. Ill, §§ 3, 4, 5, 6. 

Cited: State v. McGehan, 27 O. S. 280; Lindsay v. Lindsay, 28 O. S. 
157; Stearns v. Taylor, 1 O. N. P. 23, 1 O. D. (N.P.) 136. 

The jurisdiction of the courts of common pleas of the state is, by 
force of this section of the constitution, to be fixed by statute: Allen v. 
Smith, 84 O. S. 283. 

The constitution confers no jurisdiction w'hatever upon the court 
of common pleas, in either civil or criminal cases. It is made capable 
of receiving jurisdiction in all such cases, but can exercise none until 
conferred by law: Stevens v. State, 3 O. S. 453. 

General Code § 3578, providing for detaching unplatted farm lands 
from municipalities, and attaching them to adjacent townships, do not 
contravene this sectio^n: Grover Hill v. McClure, 6 O. C. C. (NS.) 197, 
17 O. C. D. 376 [affirmed, without report, Grover Hill v. McClure, 72 O. S. 
676]. 

See Art. II, § 26, and Art. IV, § 8. 

1 Debates, 431, 590; 2 Debates, 357, 370, 396, 401, 402, 483, 485, 685, 686, 
695-698, 809, 836, 860, 870. 

Section 5. [Repealed October 9, 1883 : 80 v. 382.] 

Repealed, October 9, 1883; 80 O. L. 382. 

Original § 5 read as follows: “Sec. 5. [District courts.] District 
courts shall be composed of the judges of the court of common pleas 
of the respective districts, and one of the judges of the supreme court, 
anj’- three of whom shall be a quorum, and shall be held in each county 
therein, at least once in each year; but if it shall be found inexpedient 



CONSTITUTION OP THE STATE OP OHIO OP 1851 . Art.IV, § 6. 


to hold such court annually, in each county of any district, the general 
assembly may for, such district, provide that said court shall hold at 
least three annual sessions therein, in not less than three places, pro¬ 
vided, that the general assembly may, by law, authorize the judges of 
each district to fix the times of holding the courts therein.” 

The judges of the court of common pleas were by the constitution 
and laws of this state, judges of the district court, and as such, em¬ 
powered to exercise its authority: Hollister v. Judges, 8 O. S. 201. 

A district court held by three or more common pleas judges, without 
the presence of a judge of the supreme court, was a lawful and consti¬ 
tutional district court: King v. Safford, 19 O. S. 587. 

Section 7 of the act of March 29, 1856 (53 v. 44), in relation to the 
time of holding courts, authorizing the judges of a district to appoint 
special terms for good cause was authorized by this section: Merchant 
V. North, 10 O. S. 251. 

The act of 1878 (75 v. 139), ‘‘to change the common pleas districts 
of the state,” etc., was unconstitutional, for the reason that common 
pleas districts can not be constructed with more than three subdivisions, 
and because the judges to be selected for the district court are by the 
act permanently exonerated from performing duty in the court of com¬ 
mon pleas: District Court Case, 34 O. S 431. 

1 Debates, 431, 590-626, 630, 645, 647-651, 655-669; 2 Debates, 357, 

368-391, 396, 402, 483-485, 668, 669, 685, 686, 695-698, 809, 836, 860, 870. 

Section 6 . The state shall be divided into appellate dis¬ 
tricts of compact territory bounded by county lines, in each of 
which there shall be a court of appeals consisting of three judges, 
and until altered by law the circuits in which the circuit courts 
are now held shall constitute the appellate districts aforesaid. 
The judges of the circuit courts now residing in their respective 
.districts shall be the judges of the respective courts of appeals 
in such districts and perform the duties thereof until the expira¬ 
tion of their respective terms of office. Vacancies caused by 
the expiration of the terms of office of the judges of the courts 
of appeals shall be filled by the electors of the respective appel¬ 
late districts in which such vacancies shall arise. Until other¬ 
wise provided by law the term of office of such judges shall be 
six years. Laws may be passed to prescribe the time and mode 
of such election and to alter the number of districts or the 
boundaries thereof, but no such change shall abridge the term 
of any judge then in office. The court of appeals shall hold at 
least one term annually in each county in the district and such 
other terms at a county seat in the district as the judges may 
determine upon, and the county commissioners of any county in 
which the court of appeals shall hold sessions shall make proper 
and convenient provisions for the holding of such court by its 
judges and officers. Each judge shall be competent to exercise 
judcial powers in any appellate district of the state. The courts 
of appeals shall continue the work of the respective circuit courts 
and all pending cases and proceedings in the circuit courts shall 
proceed to judgment and be determined by the respective courts 
of appeals, and the supreme court, as now provided by law, and 
cases brought into said courts of appeals after the taking effect 
hereof shall be subject to the provisions hereof and the circuit 
courts shall be merged into, and their work continued by, the 
courts of appeals. The courts of appeals shall have original 
jurisdiction in quo warranto, mandamus, habeas corpus, prohi¬ 
bition and procedendo, and appellate jurisdiction in the trial of 
chancery cases, and, to review, affirm, modify or reverse the 
judgments of the courts of common pleas, superior courts and 
other courts of record within the district as may be provided 
by law, and judgments of the courts of appeals shall be final in 


Courts of 
appeals. 



234 


Art.IV, § 6. CONSTITUTION OF THE STATE OF OHIO OF 1851 . 


all cases, except cases involving questions arising under the 
constitution of the United States or of this state, cases of felony, 
cases of which it has original jurisdiction, and cases of public 
or great general interest in which the supreme court may direct 
any court of appeals to certify its record to that court. No 
judgment of a court of common pleas, a superior court or other 
court of record shall be reversed except by the concurrence of 
all the judges of the court of appeals on the weight of the evi¬ 
dence and by a majority of such court of appeals upon other 
questions; and whenever the judges of a court of appeals find 
that a judgment upon which they have agreed is in conflict 
with a judgment pronounced upon the same question by any 
other court of appeals of the state, the judges shall certify the 
record of the case to the supreme court for review and final 
determination. The decisions in all cases in the supreme court 
shall be reported, together with the reasons therefor, and laws 
may be passed providing for the reporting of cases in the courts 
of appeals. The chief justice of the supreme court of the state 
shall determine the disability or disqualification of any judge 
of the courts of appeals and he may assign any judge of the 
courts of appeals to any county to hold court. (As amended 
September 3, 1912.) 

Vote: “Yes,” 264,922; “No,” 244,375. 

Section 6 as amended October 9, 1883, 80 v. 382, read as follows: 
“Sec. 6. The circuit court shall have like original jurisdiction with' 
the supreme court, and such appellate jurisdiction as may be provided 
by law. Such courts shall be composed of such number of judges as 
may be provided by law, and shall be held in each county, at least 
once in each year. The number of circuits, and the boundaries thereof, 
shall be prescribed by law. Such judges shall be elected in each cir¬ 
cuit by the electors thereof, and at such time and for such term as 
may be prescribed by law, and the same number shall be elected in each 
circuit. Each judge shall be competent to exercise his judicial powers 
in any circuit. The general assembly may change, from time to time, 
the number of boundaries of the circuits. The circuit courts shall be 
the successors of the district courts, and all cases, judgments, records, 
and proceedings pending in said district courts, in the several counties 
of any district, shall be transferred to the circuit courts in the several 
counties, and be proceeded in as though said district courts had not 
been abolished, and the district courts shall continue in existence until 
the election and qualification of the judges of the circuit courts. (As 
amended October 9, 1883: 80 v. 382.)” 

Original § 6 read as follows: “Sec. 6. [Their jurisdction.] The 
district court shall have like original jurisdiction with the supreme 
court, and such appellate jurisdiction as may be provided by law.” 

Cited: Longworth v. Sturges, 4 O. S. 710; Cable v. Alvord, 27 O. S. 
654; Building Association v. Insurance Co., 34 O. S. 291; Atwood v. 
Whipple, 48 O. S. 308; Gompf v. Wolfinger, 67 O. S. 144; State, ex rel., v. 
Pattison, 73 O. S. 305; [n re Thatcher, 80 O. S. 492. 

The act of April 16, 1885, authorizing the circuit court to grant 
further time to file additional bond in cases appealed from the court of 
common pleas, was held valid: Bank v. McGuffey, 1 O. C. C. 88, 1 
O. C. D. 53. 

Suit was brought in the court of common pleas, June 18, 1881, to 
contest the validity of a will; a judgment was rendered December 23, 
1895, and an appeal taken to the circuit court. On motion to dismiss the 
appeal it was held that the circuit court was without jurisdiction: 
McMaster v. Keller, 1 O. C. C. 476, 1 O. C. D. 266. 

An appeal does not lie from an interlocutory order, modifying an 
injunction: Forgy v. Railroad, 1 O. C. C. 417, 1 O. C. D. 233 [affirmed, 
without report. Railroad v. Forgy, 30 Bull. 376]. 

Appeals are not matters of right and legislative requirements as to 
appeal bonds do not contravene this section: Trader v. Sale, 18 O. C. C. 
814, 1 O. C. D. 654. 

If the function conferred upon the mayor and judge by the Jones 
local option law (G. C. § 6140), are of a judicial nature, then G. C. § 6164, 
giving jurisdiction in error to the circuit court does not contravene this 
section; otherwise, if such duties are ministerial, as this would confer 



235 


CONSTITUTION OP THE STATE OP OHIO OP 1851 . Art.IV, § 7. 


original jurisdiction upon the circuit court: Jones Law v. Johnson, 9 O. 
C. C. (N.S.) 147, 19 O. C. D. 134. 

If no provision by statute is made for contesting the election of 
township officers, quo warranto will lie to contest such election: State, 
ex rel., v. Conser, 5 O. C. C. (N.S.) 119, 14 O. C. D. 270. 

Under the judicial system established by the constitution of 1851, 
and the enactments under it, the district court had no jurisdiction, on 
the election of the defendant or otherwise, to try cases of murder, unless 
they were pending in the old supreme court, and went to the district 
court by the transfer provided in the constitution, as pending business 
(Schedule, § 12): Parks v. State. 3 O. S. 101; Cass v. Dillon, 2 O. S. 607; 
Robbins v. State, 8 O. S. 131. 

The first assignment of error raises the question of the right of the 
accused to elect to be tried in the district court. The statute, directing 
the mode of trial in criminal cases (R. S. § 2006) provides, that on the 
arraignment of a person indicted for a capital offense, and before plead¬ 
ing, he shall be allowed the liberty to elect whether he will be tried in 
the supreme court of the county, or in the court of common pleas. This 
statute was enacted under the former constitution of the state, and was 
applied to the judicial system under that constitution. By the present 
constitution, the district court was made the successor of the supreme 
court in each county under the former constitution. But, except as to 
causes pending, the original jurisdiction of the district court was 
expressly defined by the constitution, and as it has been interpreted, 
limited to four writs, thereby excluding the jurisdiction in the trial of 
cases, the punishment whereof is death, which had been given to the late 
supreme court. The question whether the district court could take 
jurisdiction for the trial of such cases, on the election of the accused, 
pursuant to the statutory provision on that subject, was directly made 
in the case of Parks v. State, wherein the decision of the common pleas, 
denying to the accused the right to elect to be tried in the district court, 
was on full consideration affirmed by this court. (Parks v. State, 3 O. S. 
101.) This unfortunate operation of the present constitution doubt¬ 
less the result of oversight, is much to be regretted. While the new 
constitution enlarged the means of obtaining justice in civil cases—pro¬ 
viding two courts, and allowing a trial in each, as a matter of right, in 
contests for property—it narrowed the chance for impartial justice, in 
causes in which life is at stake, by allowing a trial in such cases only 
in the common pleas, and taking away the right of the accused, which 
had existed, to elect to be tried in the higher tribunal,-held by several 
judges removed from the local excitement and prejudice which too 
often surround the single judge in the trial of capital cases, in the com¬ 
mon pleas. But the constitution having thus, by its operation, taken 
away that important right in the trial of cases involving man’s highest 
earthly interest, the courts have no power to remedy the difficulty by a 
restoration of the right thus abridged: Robbins v. State, 8 O. S. 131. 

A statute authorizing the reservation of a cause by a district court, 
or the supreme judge sitting therein, for decision by the supreme court, 
is constitutional: Chase v. Washburn, 2 O. S. 98. 

1 Debates, 431, 590, 594, 595, 618, 619; 2 Debates, 396, 402, 483-485, 668, 
685, 686, 695-698, 809, 836, 86,0, 870. 


Section T. There shall be established in each county, a Probate courts, 
probate court, which shall be a court of record, open at all 
times, and holden by one judge, elected by the electors of the 
county, who shall hold his office for the term of four years, and 
shall receive such compensation, payable out of the county treas¬ 
ury, as shall be provided by law. Whenever ten per centum of 
the number of the electors voting for governor at the next pre¬ 
ceding election in any county having less than sixty thousand 
population as determined by the next preceding federal census, 
shall petition the judge of the court of common pleas of any 
such county not less than ninety days before any general election 
for county officers, the judge of the court of common pleas shall 
submit to the electors of such county the question of combining 
the probate court with the court of common pleas, and such 
courts shall be combined and shall be known as the court of 
common pleas in case a majority of the electors voting^ upon 
such question vote in favor of such combination. Notice of 
such election shall be given in the same manner as for the elec- 



236 


Art.IV, § 7 . CONSTITUTION OF TUB STATE OF OHIO OF 1851 . 


tion of county officers. Elections may be had in the same 
manner for the separation of such courts, when once combined. 
(As amended September 3, 1912.) 

Vote: “Yes,” 301,891; “No,” 223,287. 

For the schedule, see Art. IV, § 3. 

Original § 7 read as follows: “Sec. 7. [Probate courts.] There 
shall be established in each county, a probate court, which shall be a 
court of record, open at all times, and holden by one judge, elected by 
the voters of the county, who shall hold his office for the term of three 
years, and shall receive such compensation, payable out of the county 
treasury, or by fees, or both, as shall be provided by law.” 

For term of office under constitutional amendment, see Art. XVII. 
§§ 2, 3. 

P'or the effect of an amendment of this section, upon the terms of 
probate judges, see State, ex rel., v. Pattisonr-73 O. S. 305. 

See, also. III, in notes to this section. 

I. Cited. III. Term of office. 

II. Probate eourt a court of IV. Compensation, 
record. V. Jurisdiction. 

I. CITED. 

Railroad v. O’Harra, 48 O. S. 343; Hoffman v. Fleming, 66 O. S. 143; 
Thomas v. Evans, 73 O. S. 140; Bank v. Telegraph Co., 79 O. S. 89; In re 
Jones, 5 O. N. P. 3 02, 8 O. D. (N.P.) 123. 

For a discussion of the historv of probate courts of Ohio, see In re 
Jones, 5 O. N. P. 102, 5 O. D. (N.P.) 233. 

II. PROBATE COURT A COURT OF RECORD. 

The probate courts of this state are, in the fullest sense, courts of 
record; they belong to the class whose records import absolute verity, 
that are competent to decide on their own jurisdiction, and to exercise 
it to final judgment, without setting forth the facts and evidence on 
which it is rendered: Shroyer v. Richmond, 16 O. S. 455. 

The probate court of Ohio, being a court of record, under act of 
congress of 1802 (2 Stat. 155), may issue naturalization papers: State 
V. Metzger, 10 O. N. P. (N.S.) 97, 21 O. D. (N.P.) 72; Ex parte Smith, 
Fed. Cases, 12969, 3 O. F. D. 552. 

III. TERM OF OFFICE. 

Section 7, of Art. IV, of the constitution, was in force as to all of its 
provisions until the close of the election on November 7, 1905, and a per¬ 
son who was elected on that day to succeed himself as probate judge, 
was elected for the term of three years from and after the expiration 
of the term, which he was already holding: State, ex rel., v. Pattison, 
73 O. S. 305. 

Section 2, of the amendment to the constitution, which is now desig¬ 
nated as Art. XVII, providing that the term of office of a probate judge 
shall be four years, applies only to such persons as shall be elected to 
such office as provided in § 1, of such amendment. Said amendment is 
not retroactive. Terms of office existing at and before the adoption of 
the amendment are not restricted or abolished thereby; but existing 
terms of office may be extended by the general assembly so as to effect 
the purpose of § 1, of the amendment. The phrase “existing terms of 
office” means the terms of office as defined in the constitution and acts 
of the general assembly as they existed at the time of the proposal of 
the amendment and of its adoption: State, ex rel., v. Pattison, 73 O. S. 
305. 

The county of Wyandot, on account of a tie vote, failed to elect a 
probate judge on the second Tuesday of October, 1851, as prescribed by 
the fourth section of the schedule to this constitution. At the fall 
election of 1852, K was elected to that office and was commissioned 
for the term of three years. At the fall election of 1855, he was re¬ 
elected, and commissioned for a like term. On the second Tuesday of 
October, 1857, and while K still remained judge de facto, another elec¬ 
tion was held for the office and M received the highest number of votes. 
It was held that K was on each of his said elections, legally commis¬ 
sioned for the term of three years, and that the relator is not therefore 
entitled to a commission to take effect from the ninth day of February, 
1858: State v. Chase, 7-0. S. 372. (See schedule to the same effect, § 4, 
Const. 1851. See Art. IV, § 13n.) 

Where a sheriff gave notice of election, but no notice of the fact 
that there was an unexpired term of thirty days, or whether election 
was for full term or part, it was held that such election is not void for 
uncertainty: that such election did not embrace both offices: State, 
ex rel., v. Cogswell, 8 O. S. 620. 



237 


CONSTITUTION OF THE STATE OF OHIO OF 1851 . Art.IV, § 8. 


IV. COMPENSATION. 

A statute (67 v. 36) entitled, “An act limiting the compensation of 
certain officers therein named does not contravene the clause of this 
section, which provides that the judge shall receive such compensation, 
payable out of the county treasury, or by fees, or both, as shall be 
provided by law: State, ex rel., v. The Judges of the Court of Common 
Pleas, 21 O. S. 1. 

V. JURISDICTION. 

An act to establish a court of insolvency in counties containing a 
city of the first grade, of the first class, and for the relief of the probate 
court in such counties, does not violate this section: State, ex rel., v. 

Archibald, 62 O. S. 1. 

An act establishing an insolvency court in Cuyahoga county (G. C. 

§ 1620, et seq.), does not contravene this section: Serhaut v. Englebury, 

2 O. Li. R. 512, 50 Bull. 68 [affirmed, without report, Serhant v. Englebry, 

76 O. S. 565]. 

1 Debates, 431, 551, 591, 593, 602, 623, 669, 673, 675, 676; 2 Debates, 

379, 390, 396-402, 483-485, 681, 682, 685, 686, 695-698, 809, 836, 860, 870. 

Section 8. The probate court shall have jurisdiction in Their jurisdic- 
probate and testamentary matters, the appointment of admin- 
istrators and guardians, the settlement of the accounts of ex¬ 
ecutors, administrators, and guardians, and such jurisdiction in 
habeas corpus, the issuing of marriage licenses and for the sale 
of land by executors, administrators, and guardians, and such 
other jurisdiction, in any county or counties, as may be provided 
by law. 

I. Cited. 

II. Probate and testamentary 
matters. 

III. Appointment of administra¬ 
tors and guardians. 

I. CITED. 

Woodmansie v. Woodmansie, 32 O. S. 18; Railroad v. Belle Centre, 

48 O S. 273; Hoffman v. Fleming, 66 O. S. 143; McMahon v. Ambach Co., 

79 O. S. 103; Reed v. Brown, 10 O. C. C. 49, 6 O. C. D. 15 [affirmed. Brown 
V. Reed, 56 O. S. 264]; In re Assignment of Jones, 5 O. N. P. 102, 5 O. D. 

(N.P.) 233; Norris v. Casper, 8 O. N. P. 475, 11 O. D. (N.P.) 616; Kisling- 
bery v. Donovan, 8 O. N. P. 476, 11 O. D. (N.P.) 535; Knight v. Johnson, 

1 O. N. P. (N.S.) 260, 13 O. D. (N.P.) 715; Haynes v. Hillsboro, 3 O. N. P. 

(N.S.) 17, 50 Bull. 236; Smith v. Telegraph Co., 7 O. N. P. (N.S.) 609, 19 
O. D. (N.P.) 537. 

II. PROBATE AND TESTAMENTARY MATTERS. 

The constitution contemplates that original jurisdiction in probate 
and testamentary matters should be confined to the probate court, but 
it in no wise limits the jurisdiction in probate and testamentary matters 
exclusively to that court, so as to cut off appeal or error therefrom: In 
re Sells Estate, 8 O. N. P. (N.S.) 175, 19 O. D. (N.P.) 567. 

III. APPOINT3IENT OF ADMINISTRATORS AND GUARDIANS. 

The act of January 9, 1871 (68 O. L. 6), conferring jurisdiction upon 
courts of common pleas to appoint guardians of the property of persons 
incapable of taking care of and preserving their property, by reason of 
intemperance and habitual drunkenness, is not in conflict with the pro¬ 
vision of Art. IV, § 8, of this constitution, defining the jurisdiction of 
probate courts: Hagany v. Cohnen, 29 O. S. 82. 

This section does not authorize the legislature to provide by statute 
that trust companies may act as executors or administrators in certain 
counties of the state; since by virtue of Art. H, § 26, such a statute 
being of a general nature must have a uniform operation throughout" 
the state: Schumacher v. McCallip, 69 O. S. 500. 

The appeal to the court of common pleas from the judgment and 
order of the probate court refusing to appoint a guardian for one alleged 
to be an imbecile and dismissing the application for such appointment, 
authorized by G. C. § 10989, transfers to the court of common pleas 
the entire cause, and empowers that court, upon finding the person 
to be an imbecile and that a guardian is needed, to appoint a guardian. 

Upon such appointment being made it is the duty of the clerk of the 
court of common pleas to certify, by a duly authenticated transcript, the 
order, judgment, and proceedings to the probate court: In re Oliver, 77 
O. S. 474. 


IV. Settlement of accounts. 

V. Other juri.sdiction. 

VI. In any county or counties. 





238 


Art.IV, § 8. CONSTITUTION OP THE STATE OP OHIO OP 1851 . 


Exclusive original jurisdiction to remove a guardian being, by 
G. C. § 10492, vested in the probate court, the court of common pleas 
is -without original jurisdiction to entertain an application to remove 
a guardian. Where an application for such removal is made in the 
first instance to the court of common pleas, it is not error for that court 
to sustain a general demurrer to such application and dismiss the pro¬ 
ceeding; In re Oliver, 77 O. S. 474. 

The general power of appointment of administrators given by this 
section inheres in the probate court until the administrator has fully 
performed all the duties enjoined upon him by law in the performance 
of his trust: Chamberlain v. Stecher, 78 O. S. 271. 

“The probate court is a court of record and its jurisdiction in 
matters testamentary and in the appointment of administrators and 
guardians has been broadly given by the constitution of this state. 
Art. IV, §§ 7 and 8. The jurisdiction is plenary, and it may well be 
doubted whether the legislature, if it chose to do so, could in any 
respect limit it”: Bank v. Telegraph Co., 79 O. S. 89. Accordingly, the 
appointment of a trust company as executor-can not be attacked col¬ 
laterally in an action by such executor to recover damages for injury 
to the property of the decedent. 

IV. SETTLEMENT OP ACCOUNTS. 

There exists no constitutional impediment to investing the probate 
court with power upon final settlement with the administrator of an 
intestate estate, to order distribution of the money remaining in his 
hands to the persons entitled thereto: McLaughlin v. McLaughlin, 

4 O. S. 508. 

After the expiration of the eight months allowed by G. C. § 10834, 
for filing exceptions, when the account is settled in the absence of a 
person interested and without actual notice to him, the judgment of a 
probate court settling the final account of an executor or an admin¬ 
istrator becomes absolute and conclusive and can not be attacked 
except for fraud of the prevailing party: Crawford v. Zeigler, 84 O. 
S. 224. 

Notwithstanding this section, the court of common pleas of the 
proper county, under existing laws, has jurisdiction of a civil action 
brought to determine and enforce the right to contribution given by 
statute to a child born after the execution of the will of its parent: 
McGarry v. Smith, 22 O. S. 190. 

By this section the probate court has a fixed constitutional juris¬ 
diction over the settlement of the accounts of guardians, and is 
capable in any county of the state of exercising such other jurisdiction 
as may be conferred by law: Lindsay v. Lindsay, 28 O. S. 157. 

The proceeding of an administrator to sell the land of the deceased 
is a civil action. The probate court has jurisdiction to try questions 
of facts therein and afford a jury trial if case demands it: Doan v. 
Biteley, 49 O. S. 588. 

The probate court is not expressly vested with jurisdiction to 
order an administrator, against his objection, specifically to perform 
an agreement alleged to have been made by his intestate; and such 
an order, so made, merely on motion of a party to the agreement, and 
not necessary to effectuate some power expressly conferred is coram 
non judice, and void: Jones v. Green, 21 O. C. C. 96, 11 O. C. D. 548. 

While the probate court has authority to direct and control the 
conduct of executors and administrators with reference to the trusts 
they are called upon to administer, it is without authority to go 
beyond such direction and control as is conferred by law, or to require 
the performance of an act which is outside of or beyond a legal 
administration of the estate: In re Estate of Ferguson, 6 O. N. P. (N.S.) 
417, 18 O. D. (N.P.) 374. 

This section does not limit the jurisdiction in probate and testa¬ 
mentary matters exclusively, so as to cut off appeal or error therefrom: 
In re Estate of Sells, 8 O. N. P. (N.S.) 175, 19 O. D. (N.P.) 567. 

V. OTHER JURISDICTION. 

General Code § 13451 which authorizes the probate court to try 
an issue on a plea other than that of guilty, if defendant does not 
demand trial by jury is valid and constitutional; Dailey v. State, 4 
O. S. 57. 

Under this section and § 7, the probate court has capacity for re¬ 
ceiving jurisdiction as great as that of the court of common pleas: 
Railroad v. OTIarra, 48 O. S. 343. 

Jurisdiction may be conferred upon probate courts to inquire into 
and determine damages, caused by improvements: Toledo v. Preston, 
50 O. S. 361. 

A statute which authorizes the probate court to determine the 
method in which a telegraph and telephone company may make use 
of the streets of a municipal corporation, if such company and such 
municipal corporation can not agree, is valid and constitutional: 
Zanesville v. Telephone Co., 64 O. S. 67 [reversing on rehearing, Zanes¬ 
ville V. Telephone Co., 63 O. S. 442]. 





239 


CONSTITUTION OP THE STATE OP OHIO OP 1851. Art.IV, § 9. 


By G. C. §§ 11092, 11093, et seq., jurisdiction on assignments for the 
benefit of creditors is vested exclusively in the probate court: Wam- 
baugh V. Insurance Co., 59 O. S. 228; see, to the same effect, In re 
Jones, 5 O. N. P. 102, 8 O. D. (N.P.) 123. 

The “merits of the proceedings” with reference to an election 
held under the Beal municipal local option law, which the probate 
court is given final jurisdiction to hear and determine, includes all 
matters touching or in any way relating to and affecting the question 
whether or not the election has been held in conformity with the 
statute authorizing such an election, and prescribing conditions under 
which it may be held, the manner of ordering, giving of notice, con¬ 
ducting, etc. Such grant of authority does not include power on the 
part of the probate judge to hear and determine whether the law itself 
is constitutional or otherwise; and where a probate judge goes further, 
and makes a finding that the act itself is void on constitutional 
grounds, his action is coram non judice as to that finding, and the 
case, stands as it would have stood had the finding been limited to 
matters as to which the probate judge had jurisdiction: Wells v. 

State, 1 O. N. P. (N.S.) 309, 14 O. D. (N.P.) 196. 

There is nothing in this section preventing the establishing of a 
court of insolvency for Cuyahoga county: Serhaut v. Englebury, 2 O. 

L. R. 512, 50 Bull. 68 [affirmed, without report, Serhant v. Englebry, 

76 O. S. 565]. 

The legislature may establish a court of insolvency in Hamilton 
county, and may relieve the probate court of cases of that sort: 

State, ex rel., v. Archibald, 52 O. S. 1. 

VI. IN ANY COUNTY OR COUNTIES. 

The jurisdiction may be extended to all counties in the state by a 
general enactment. “The words ‘in any county or counties’ were 
probably used rather as enabling than restrictive language, and were 
designed to permit the general assembly—notwithstanding the pro¬ 
vision of Art. II, § 26, requiring all laws of a general nature to have a 
uniform operation throughout the state—in its discretion to confer 
upon the . probate court more extended powers in some counties than 
in others. Upon the opposite construction, a power to confer the 
jurisdiction in one county by a local enactment is a power to confer 
it in all the counties in the same manner; which brings us to the 
absurd conclusion that the legislature is competent to do by ninety 
laws what it is incompetent to do by one”: Giesy v. Railway, 4 O. S. 

308. 

“A jurisdiction may be given to the probate court in one county 
which is not conferred in another; but this express exception relates 
only the extent of the jurisdiction of the probate court. The whole 
■object of the section is to define the limits of its jurisdiction; it treats 
of nothing else, and does not once name the courts of common pleas. 

Nor does it follow as a necessary conclusion that because the juris¬ 
diction of the probate court may be more extensive in one county 
than in another, the jurisdiction of the courts of common pleas must 
also differ in extent. The latter may be uniform and the former not. 

The probate court may, in some counties, possess a jurisdiction con¬ 
current with the common pleas, which is denied to it in others”: 

Kelley v. State, 6 O. S. 269. 

An act to establish a court of insolvency in counties containing 
a city of first grade of first class, and for the relief of the probate 
court in such counties, does not violate this section: State, ex rel., 
v. Archibald, 52 O. S. 1. 

The clause, “and any other jurisdiction in any county or counties, 
as may be provided by law,” is enabling and was intended to give the 
legislative authority which otherwise would be restricted by Art. II, 

§ 26; Pearson v. Stephens, 13 O. C. C. 49, 7 O. C. D. 122 [reversed, on 
other grounds, in Pearson v. Stephens, 56 O. S. 126], 

The legislature under the terms of this section, has authority to 
give the probate court of Butler county concurrent jurisdiction with 
the court of common pleas, in certain cases: Gill v. Sealbridge, 17 O. 

C. C. 390, 9 O. C. D. 554. 

A statute which gives certain jurisdiction to the probate court 
of Miami county, is valid by virtue of this section: Oberer v. State, 

8 O. C. C. (N.S.) 93, 18-0. C. D. 620; see, also. Bank v. Reinhard, 13 O. 

D. (N.P.) 630. 

1 Debates, 431, 551, 591, 593, 602, 609-612, 616, 622, 623, 625, 654, 

669-695; 2 Debates, 357-371, 379, 384, 390, 396, 398-402, 483-485, 681-686, 

695-698, 809, 836, 860, 870. 

Section 9 . A competent number of justices of the peace justices of the 
shall be elected by the electors in each township in the several 
counties, until otherwise provided by law. Their term of office 




240 


Art.IV, § 9 . CONSTITUTION OF THE STATE OP OHIO OP 1851 . 


shall be for four years and their powers and duties shall be 
regulated by law: provided that no justice of the peace shall be 
elected in any township in which a court, other than a mayor’s 
court, is, or may hereafter be, maintained with the jurisdiction 
of all causes of which justices of the peace have jurisdiction, 
and no justice of the peace shall have, or exercise jurisdiction in 
such township. 

SCHEDULE. 

If the amendment to article IV, sections i, 2 and 6, be 
adopted by the electors of this state and become a part of the 
constitution, then section 9 >of article IV of the constitution is 
repealed, and the foregoing amendment, if adopted, shall be of 
no effect. (As amended September 3, 1912.) 

Vote: “Yes,” 264,832; “No,” 252,936. 

The amendment to Art. IV, §§ 1, 2 and 6, was adopted. See note to 
such sections. 

Original § 9 read as follows: “Sec. 9. [Justices of the peace.] A 
competent number of justices of the peace shall be elected, by the 
electors, in each township in the several counties. Their term of office 
shall be three years, and their powers and duties shall be regulated by 
law. (See Const. 1802, Art. Ill, § 11.)” 

See Const. 1802, Art. Ill, § 11. 

For term of office under constitutional amendment, see Art. XVII, 
§§2, 3. 


I. Cited. III. Jurisdiction and powers. 

II. Terms of office. 

I. CITKD. 

Derby v. Heath, 59 O. S. 54; Watkins v. Schlecter, 7 O. N. P. 42, 
9 O. D. (N.P.) 590; Ex rel. Michael, 2 O. L. R. 467; K. B. Company v. 
Brenner, 21 O. D. (N.P.) 668. 

II. TERMS OF OFFICE. 

The term of office of justice of peace is limited to three years from 
the date of his commission: Bushnell v. Koon, 8 O. C. C. (N.S.) 163, 
18 O. C. D. 367 [affirmed, without report, Koon v. Bushnell, 71 O. S. 
521]. 

“The predecessors of these defendants were elected for a constitu¬ 
tional term of three years, at a spring election in April, 1902, and their 
term could not be curtailed by reason of the change in the time of elec¬ 
tion of justices of the peace from spring to fall. We hold, therefore, 
that the defendants’ terms of office began not in November, 1904, but in 
April, 1905, and continued thereafter under the provisions of Art. IV, 
§ 9, of the constitution, as it then existed, and under Art. XVII, § 3, of 
the constitution, as since amended, for the full term of three years, for 
which they were elected, to-wit, until April, 1908, and until their 
successors are elected and qualified, as provided by law”: State, ex rel., 
V. Brown, 11 O. C. C. (N.S.) 107. 

III. JURISDICTION AND POWERS. 

Under this provision, the general assembly may confer upon 
justices of the peace such general and special jurisdiction not in con¬ 
flict with the exclusive original jurisdiction vested by the constitution 
and laws in other courts, as it shall think proper and deem wise: 
Trustees v. Tuttle, 30 O. S. 62. 

The powers and duties of the justices of the peace in this state 
are regulated solely by statute: Bowers v. Pomeroy, 21 O. S. 184. 

The jurisdiction of justice of the peace is entirely statutory. 
Their jurisdiction over the subject-matter of an action is conferred 
by statute and can be derived from no other source, nor in any other 
manner: Nicholson v. Roberts, 4 O. N. P. 43, 6 O. D. (N.P.) 233. 

This section provides for office of justice of the peace, but leaves 
his powers and duties entirely to the control of the legislature: Ex 
parte Boswell, 3 O. N. P. (N.S.) 555, 16 O. D. (N.P.) 250. 

A justice who is, elected in a township a part of which is after¬ 
wards annexed to another township, and who lives in the annexed 
part, acquires jurisdiction in civil cases in the new township as it 
existed after such change or boundary: Pfeiffer v. Green, 3 O. N. P. 
156, 4 O. D. (N.P.) 239. 




241 

CONSTITUTION OF THE STATE OP OHIO OP 1851 


Ohio the justice’s court is a constitutional tribunal and except 
that as a limited one, it is to be strictly held within the limits of the 
prescribed jurisdiction, and its records must affirmatively show the 
tacts establishing' jurisdiction, there is no difference between courts 
of inferior and general jurisdiction: Righter v. Thornton, 6 O. D. 
(N.P.) 8, .SO Bull. 32. 

1 Debates, 431, 551, 593, 654; 2 Debates, 370, 384, 396, 401, 402, 
483-485, 685, 686, 695-698, 809, 836, 860, 870. 


Section 10. All judges, other than those provided for in 
this constitution, shall be elected by the electors of the judicial 
district for which they may be created, but not for a longer term 
of office than five years. 

For term of office under constitutional amendment, see Art. XVII, 
§§ 2, 3. 

Cited: Ex parte Bank, 1 O, S. 432; In re Derrick, 11 O. C. C. 
(N.S.) 518, 21 O. C. D. 282. 

This section applies to a judicial district for election purposes, 
and does not affect the matter of jurisdiction power to provide, which 
is specifically given to the general assembly by § 18: Carey v. State, 
70 O. S. 121; see, also, Steamboat v. Milliken, 7 O. S. 383; State v. 
Peters, 67 O. S. 494. 

The statute which confers upon the mayor of a municipal corpo¬ 
ration jurisdiction in cases of misdemeanor (see G. C. § 4536), is not in 
violation of this section: Kubach v. State, 2 O. C. C. (N.S.) 133, 15 
O. C. D. 488. 

Acts of de facto officers can not be attacked collaterally: State 
V. Krause, 1 O. N. P. 91, 1 O. D. (N.P.) 122; Ex parte Strang, 21 O. S. 
610. 

1 Debates, 431, 551, 676-707; 2 Debates, 359, 360, 396, 402, 484, 685, 
686, 695-698, 809, 836, 860, 870. 


Section 11. [Repealed October 9, 1883; 80 v. 382.] 

Repealed October 9, 1883; 80 O. L. 382. 

Original § 11 read as follows: “Sec. 11. [Classification of supreme 
judges.] The judges of the supreme court shall, immediately after the 
first election under this constitution, be classified by lot, so that one 
shall hold for the term of one year, one for two years, one for three 
years, one for four years, and one for five years; and, at all subsequent 
elections, the term of each of said judges shall be for five years.’’ 

1 Debates, 431, 551, 719, 720; 2 Debates, 131-133, 360, 396, 400, 402, 
483-485, 684-686, 695-698, 809, 836, 860, 870. 


Section 12. The judges of the courts of common pleas 
shall, while in office, reside in the county for which they are 
elected; and their term of office shall be for six years. (As 
amended September 3, 1912.) 

Vote: “Yes,” 301,891; “No,” 223,287. 

For the schedule, see Art. IV, § 3. 

Original § 12 read as follows: “Sec. 12. [Common pleas judges: 
their term of office and residence.] The judges of the courts of common 
pleas shall, while in office, reside in the district for which they are 
elected; and their term of office shall be for five years. (See Const. 1802, 
Art. Ill, §§3, 8.)” 

See Const. 1802, Art. Ill, § 3. 

For term of office under constitutional amendment, see Art. XVII, 
§§ 2, 3. 

Cited: Pfeiffer v. Green, 3 O. N. P. 156, 4 O. D. (N.P.) 239; Insurance 
Co. V. Packet Co., 6 O. N. P. 173, 7 O. D. (N.P.) 571. 

The legislature may change the boundaries of a county, and when 
such change places an associate judge within limits of another county, 
who does not, within a reasonable time, remove into the limits of the 
county for which he was appointed, he forfeits his office (Const. 1802): 
State, ex rel., v. Choate, 11 O. 511. 

The general assembly can neither lengthen nor shorten the term 
of a common pleas judge: State, ex rel., v. Handy, 51 O. S. 204. 

1 Debates, 431; 2 Debates, 133, 360, 396, 402, 483-485, 685 686 

695-698, 809, 836, 860, 870. 


Art.IV, § 10. 


Other judges. 


Common pleas 
judges: their 
term of office 
and residence. 




242 


Art.IV, § 13. 


Vacancies, how 
filled. 


CONSTITUTION OF THE STATE OF OHIO OF 1851 . 


Section 13. In case the office of any judge shall be¬ 
come vacant, before the expiration of the regular term for which 
he was elected, the vacancy shall be filled by appointment by the 
governor, until a successor is elected and qualified; and such 
successor shall be elected for the unexpired term, at the first 
annual election that occurs more than thirty days after the 
vacancy shall have happened. 

Cited: State v. Neibling’, 6 O. S. 40; Ex parte Strang, 21 O. S. 610; 
State, ex rel., v. Pattison, 73 O. S. 305; Harte v. Bode, 4 O. N. P. 421, 

7 O. D. (N.P.) 74. 

Where a vacancy occurred in the office of probate jiidge of Pick¬ 
away county more than thirty days before the next annual election, 
at which a probate judge for the constitutional term was also to be 
chosen, and the sheriff, in his proclamation giving notice of said 
election, failed to give notice that a probate judge would be chosen 
to fill the unexpired term, but merely gave notice that one probate 
judge for said county would be chosen, without more, and the voters 
cast their ballots for probate judge without indicating whether for 
the unexpired term or for the constitutional term: Held, 1. That, 
under the constitution and laws of this state, such election of probate 
judge was not void for uncertainty. 2. That such election did not embrace 
both the offices which should have been voted for at that time. 2. That 
the judge thus elected must, by reasonable intendment, be held to have 
been elected for the full, and not for the unexpired term: State, 
ex rel., v. Cogswell, 8 O. S. 620. 

The term of office of a judge elected to fill a vacancy is limited 
to the unexpired portion of the regular term in which such vacancy 
occurs; and a commission assuming to confer official authority for a 
longer term is, as to the excess, inoperative: Scarff v. Foster, 15 O. S. 
137. 

Where a vacancy is about to occur in the office of probate judge, 
by reason of the expiration of the term of an incumbent of that office, 
and the sheriff, in pursuance of the statute, in due time prior to the 
day for the regular election, publishes his proclamation giving notice 
of such election, and enumerating therein all the state and county 
offices to be filled at such election, except the office of probate judge, 
in respect to which the proclamation is silent; and, by reason of such 
malfeasance of the sheriff, the great body of the electors of such 
county are misled, and have no notice, either official, or in fact, of an 
election to fill the office of probate judge; but, nevertheless, a small 
number of the electors of the county, less than one-fourth of the 
whole number of voters at that election, cast their votes for a single 
candidate, and no votes are cast for any other, such attempted election 
is irregular and invalid: Foster v. Scarff, 15 O, S. 532. 

From this section the implication is manifest that the constitu¬ 
tion intends that in respect to elections to fill vacancies in the office 
of judge, at least thirty days’ time for notice of the election shall be 
afforded. * * * We do not intend to hold, nor are we of the opinion, 
that the notice by proclamation, as prescribed by law, is per se and in 
ail supposable cases, necessary to the validity of an election. If such 
were the law, it would be in the power of a ministerial officer, 
by his malfeasance, always to prevent a legal election. We have no 
doubt that where an election is held in other respects as prescribed by 
law, and notice in fact of the election is brought home to the great 
body of the electors, though derived through means other than the 
proclamation which the law prescribes, such election would be valid. 
But where, as in this case, there was no notice, either by official proc¬ 
lamation, or in fact, and it is obvious that the great body of the 

electors were misled, for want of the official proclamation, its absence 
becomes such an irregularity as to prevent an actual choice by the 
electors, prevents an actual election, in the primary sense of that 
word, and renders invalid any semblance of an election, which may 
have been attempted by a few, and which must operate, if it be 

allowed to operate at all, as a surprise and fraud upon the rights of 

the many: Foster v. Scarff, 15 O. S. 532. 

Whether the power of the general assembly to create a police 
court, and to provide for the election of a judge therefor, is limited 
by § 13, Art. IV, of the constitution—quaere: State, ex rel., v. Ander¬ 
son, 44 O. S. 247. 

It is to be observed that Art. IV, § 13, of the constitution, does 
not authorize the successor of a judge whose office becomes vacant 
before the expiration of his term, to be elected at the first election 
that occurs more than thirty days after the vacancy happens. It 
certainly would have done so, by omitting the word “annual,” if the 
' sole or dominating purpose was to so limit the executive patronage 



243 


CONSTITUTION OF THE STATE OP OHIO OP 1851 . 


in filling vacancies that persons appointed thereto should hold only 
until it was possible to elect the successors. While a primary object 
of the constitution undoubtedly was to make the office of judge elective 
by the people, the limitation upon the power of executive appoint- 
rnents to vacancies was intended to be reasonable, and to some prac¬ 
tical end. The same intention and policy is manifest in the provisions 
of Art. Ill, § 18, investing the governor with the like power of filling 
vacancies in the office of auditor, treasurer, secretary, and attorney- 
general, and requiring all such vacancies to be filled at the first general 
election that occurs more than thirty days after they shall happen. 
It is worthy of notice that in this latter section, the first general 
election is the period fixed for filling vacancies, while in Art. IV, 

§ 13, it is the first annual election. It can not be assumed that this 
difference in phraseology was accidental, or that the terms are used 
in the same sense. The presumption is, that the language was selected 
with care, and used with accuracy; and that if it had been intended 
to designate the same election in the two sections, the same descrip¬ 
tive terms would have been employed in each. The fact that in the 
two sections of the same instrument relating to the kindred subjects, 
the elections at which vacancies are to be filled are described in 
different language, raises the inference that they are, or may be, 
different elections. As has been seen, vacancies occurring in the offices 
named in Art. Ill, § 18, are to be filled at the general election, and 
can be at no other; and this obviously was made so, because that is 
the one prescribed by the constitution for the regular election of those 
officers. But one purpose can therefore be perceived for the difference 
in the phraseology of the two sections; and that is, that inasmuch as 
the times for the election of judges, was left by the constitution to 
the discretion of the legislature, and might in sorhe instances at least, 
be fixed by statute for periods other than those of the general election, 
it was intended to provide for filling vacancies in that office, at the 
first annual elections at the periods so fixed, that occur more than 
thirty days after the vacancies shall happen; thus applying to appoint¬ 
ments by the governor under each section, the same reasonable rule 
and limitation. In the case of all elective officers, the necessity 
for the existence of some continuous authority to fill vacancies tem¬ 
porarily, in order that the performance of their duties may not be 
too seriously interrupted, and the inconvenience and inadequacy of any 
system, by which such power could be exercised by the-people through 
the m.edium of popular elections, except at regular periods, led, no 
doubt, to the adoption of both sections; the design of each being, 
as we conceive, to effectuate the same general policy of uniformity in 
filling vacancies already alluded to. It is said that the general election 
is an annual election, because it occurs regularly every year 
at the same stated time; and where it is the next election 
that occurs more than thirty days after a vacancy has happened in 
the office of any judge, it becomes the first annual election so occur¬ 
ring and the successor must therefore be chosen at that election. 
Equally, and in the same sense, is the April election an annual election, 
for it occurs regularly every year at stated times; and it would follow, 
that where it is the next election that occurs more than thirty days 
after such vacancy happens, that would, for the same reason, become 
the first annual election, and the one at -which the successor must be 
chosen. If this is the meaning to be given to the term annual elec¬ 
tion, then, although judges of the supreme court, judges of the probate 
court and many judges of the court of common pleas, are regularly 
elected at the general election, their successors, where vacancies 
happen after that election, and more than thirty days before the 
ensuing April election, would have to be elected at the latter. Such 
has not been the generally accepted interpretation: State v. Barbee, 
45 O. S. 347. 

Article XVII, of the constitution, adopted November 7, 1905, does 
not expressly repeal or abrogate § 13, of Art. IV, of the constitution, 
ncr is it in' conflict therewith; and, applying to the construction of 
the former section the established rule that repeals by implication are 
not favored, it follows that the clause of § 13, which provides that 
where “the office of any judge becomes vacant before the expiration 
of the regular term for which he was elected, the vacancy shall be 
filled by appointment by the governor until a successor is elected and 
qualified,” remains in force: State, ex rel., v. Metcalfe, 80 O. S. 244. 

The death of a person elected to an office before he qualifies does 
not create a vacancy, where the constitution provides that an incumbent 
in an office shall hold for his term and until the election and quali¬ 
fication of a successor: State, ex rel., v. Metcalfe, 80 O. S. 244. 

The acts of a de facto officer can not be attacked collaterally: 
State V. Krause, 1 O. N. P. 91, 1 O. D. (N.P.) 122, 

This section does not render invalid a statute which authorizes 
the mayor to appoint a temporary police judge when the police judge 


Art.IV, § 13. 



244 


Art.IV, § 14 . CONSTITUTION OP THE STATE OP OHIO OP 1851 . 


is temporarily absent from the city (see G. C. § 4569): Brown v. 
Toledo, 7 O. N. P. 435, 5 O. D. (N.P.) 210. 

1 Debates, 431, 551; 2 Debates, 333, 360, 396, 400, 402, 483-485, 685, 
686, 695-698, 809, 836, 860, 870. 

Compensation of SECTION 14. The judges of the Supreme court, and of the 

m'^oSL court of common pleas, shall, at stated times, receive, for their 

services, such compensation as may be provided by law, which 
shall not be diminish-ed, or increased, during their term of office; 
but they shall receive no fees or perquisites, nor hold any other 
office of profit or trust, under the authority of this state, or 
the United States. All votes for either of them, for any elect¬ 
ive office, except a judicial office, under the authority of this 
state, given by the general assembly, or the people, shall be void. 
(See Const. 1802, Art. Ill, § 8.) 

See Const. 1802, Art. Ill, § 8. 

Cited: Ward v. Board of Education, 21 O. C. C. 699, 11 O. C. D. 

671. 

The authority of determining’ the number and compensation of 
assistants to various county officers, conferred by the act of April 6, 
1870 (67 V. 36), and the supplemental act of April 12, 1871 (68 v. 58), 
on the judges of the court of common pleas, does not invest them with 
a new office, but merely authorizes them to perform additional duties 
as judges: State v. Judges, 21 O. S. 1. 

The act of May 4, 1869 (66 v. 80), “relating to cities of the first 
class having a population exceeding one hundred and fifty thousand 
inhabitants,” is not opposed to this section. The duty it imposes upon 
the court—the appointment of trustees of a railroad to be constructed 
by a municipal corporation—is of a judicial character. Neither does 
it create a new office, in imposing this duty on the judges of the court, 
but simply annexes a new duty to an existing office: Walker v. Cin¬ 
cinnati, 21 O. S. 14. 

If the position of supervising judge be an office, how, under the 
constitution (§ 14, Art. IV), which provides that judges of the court 
of common pleas shall not “hold any other office of profit or trust 
under the authority of this state or of the United States,” could a 
judge of the court of common pleas be eligible to it? Sur-ely if an office 

at all, it is an office of trust. This court is not at liberty to assume 

that the lawmakers were ignorant of this constitutional inhibition, 

nor that they intended to disregard it. Nor can we assume that the 

general assembly intentionally committed the folly of creating an office 
by the same act limiting its occupancy to certain persons, no one of 
whom would be eligible to fill it, but in fact all such persons distinctly, 
and by constitutional provision, are prohibited from filling it. And yet 
this is exactly what the general assembly did do, if the position of 
supervising judge is an office: State, ex rel., v. Hunt, 84 O. S. 143. 

1 Debates, 431, 551: 2 Debates, 133, 134, 360-364, 396, 397, 400, 402, 
483-485, 685, 686, 695-698, 809, 836, 837, 860, 870. 

Number of judges SECTION 15. Laws may be passed to increase or diminish 
^r^^diminishe?,^^^ tlic number of judges of the supreme court, to increase beyond 
anTSLr^^coims diminish to one the number of judges of the court of 

established. comiiion plcas in any county, and to establish other courts, when¬ 

ever two-thirds of the members elected to each house shall 
concur therein; but no such change, addition or diminution shall 
vacate the office of any judge; and any existing court hereto¬ 
fore created by law shall continue in existence until otherwise 
‘provided. (As amended September 3, 1912.) 

Vote: “Yes,” 301,891; “No,” 223,287. 

For the schedule, see Art. IV, § 3. 

Original § 15 read as follows: “Sec. 15. [Number of judges may be 
increased or diminished, districts altered and other courts established.] 
The general assembly may increase, or diminish, the number of the 
judges of the supreme court, the number of the districts of the court of 
common pleas, the number of judges in any district, change the districts, 
or the subdivisions thereof, or establish other courts, whenever two- 
thirds of the members elected to each house shall concur therein; but 
no such change, addition, or diminution, shall vacate the office of any 
judge.” 




245 


CONSTITUTION OF THE STATE OF OHIO OF 1851 . 


I. Citert. III. Two-third!^ vote. 

II. Cliaiijce of number of judgrea IV. Change vacating the office of 
and districts. judge. 

I. CITED. 

State, ex rel., v. Dudley, 1 O. S. 437; State, ex rel., v. McCarty, 52 
O. S. 363; In re Derrick, 11 O. C. C. (N.S.) 518, 21 O. C. D. 282. 


II. CHANGE OF NCMDER OP JUDGES AND DISTRICTS. 

It is perfectly clear that, upon the creation of any additional court 
by the legislature, the judicial officer must be elected as such, by the 
electors of the district for which such court is created; and it is not 
within the competency of the legislature to clothe with judicial power 
any office or person not elected as a judge; Ex parte Bank, 1 O. S. 432. 

Whether the districts are increased or diminished in number, they 
must nevertheless be constituted in accordance with the requirements 
of § 3, of the judicial (Article IV): District Court Case, 34 O. S. 431. 

In exercising the power to provide for the election of an additional 
common pleas judge, the general assembly may provide for the election 
of a successor to such judge; but in the absence of words clearly 
indicating such purpose, no such election is authorized: State v. Brown, 
38 O. S. 344. 

The power to change judicial districts rests with the legislature, 
and while § 3 may prevent the division of a county, or placing entirely 
disconnected counties in the same subdivision, the territorial form and 
population is discretionary: State, ex rel., v. Jacobs, 52 O. S. 66. 


III. TWO-THIRDS VOTE. 

The act of May 3, 1852 (50 v. 223), “to provide for the organization 
of cities and incorporated villages,” conferring on mayors of cities 
of the second class “all the jurisdiction and powers of a justice of the 
peace in all matters civil or criminal,” provided the same was passed 
by a vote of two-thirds Of all the members elected to each house of the 
general assembly, is not in contravention of this section of the con¬ 
stitution: Steamboat v. Milliken, 7 O. S. 383. 

Such concurrence will, in absence of all showing to the contrary, 
be presumed: Steamboat v. Milliken, 7 O. S. 383; Miller v. State, 3 O. 
S. 475. 

The act of March 21, 1887, to repeal § 1, of an act, to change the sub¬ 
divisions in the second judicial district and to provide for the election 
of an additional judge in the first subdivision, passed March 13, 1868, 
not having been passed by a two-thirds vote of each house, is invalid: 
State V. Kinninger, 46 O. S. 570. 

An act extending the jurisdiction of the police court to hear 
and finally determine all misdemeanors committed within the limits of 
the county in which the court is situate, which is not enacted by a 
two-thirds vote of the members of each house, is void: State v. Voris, 
8 O. N. P. 16. 10 O. D. (N.P.) 451. 

The court will take judicial notice whether a statute of this sort 
received a sufficient number of votes in the general assembly to pass 
the same: Backenstoe v. State, 2 O. N. P. (N.S.) 178, 14 O. D. (N.P.) 
580. 

The general assembly establishes a court when it enacts that 
there shall be a court, fixes the number of judges, defines the juris¬ 
diction and prescribes the procedure to be followed therein; to do this 
requires a two-thirds vote, but a court may be abolished or its juris¬ 
diction or functions modified by a majority vote. 

The act of May, 1910, creating a municipal court for the city of 
Cleveland, received a two-thirds vote in the general assembly and was 
a valid enactment; and inasmuch as the amendatory act of 1911 does 
not attempt to create a new municipal court, but only modifies in some 
respects a court already established, a majority vote was all that was 
necessary to render the enactment valid, and the original as so amended 
authorizes the expenditure of public funds: Mendelson v. Miller, 11 
O. N. P. (N.S.) 586. 

IV. CHANGE VACATING THE OFFICE OF JUDGE. 

This provision means the office of any judge of a court estab¬ 
lished by this constitution. But the constitution has not limited the 
power of the general assembly to abolish courts created by the legis¬ 
lature, nor its power to vacate the office of judges of such courts: 
State, ex rel., v. Wright, 7 O. S. 333. 

1 Debates, 431; 2 Debates, 396, 400, 402, 484, 485, 684-686, 695, 698, 
809, 837, 860, 870. 


Art.IV, § 15. 



246 


Art.IV, § 16. CONSTITUTION OF THE STATE OF OHIO OF 1851 . 


Clerks of courts. SECTION 16. There shall be elected in each county, by 

the electors thereof, one clerk of the court of common pleas, 
who shall hold his office for the term of three years, and until 
his successor shall be elected and qualified. He shall, by virtue 
of his office, be clerk of all other courts of record held therein; 
but, the general assembly may provide, by law, for the election 
of a clerk, with a like term of office, for each or any other of 
the courts of record, and may authorize the judge of the 
probate court to perform the duties of clerk for his court, 
under such regulations as may be directed by law. Clerks of 
courts shall be removable for such cause and in such manner 
as shall be prescribed by law. (See Const. 1802, Art. Ill, §0.) 

See Const. 1802, Art. Ill, § 9. 

As to the terms of the clerk of court, see Art. XVII, §§ 2, 3. 

Cited: State, ex rel., v. McCracken, 51 O. S. 123; State, ex rel., v. 
Commissioners, 58 O. S. 384; State, ex rel., v. Thrall, 59 O. S. 368; Pear¬ 
son V. Stephens, 13 O. C. C. 49, 7 O. C. D. 122 [reversed, Pearson v. 
Stephens, 56 O. S. 126]; State v. Hobson, 5 O. N. P. 321, 5 O. D. (N.P.) 
442. 

The period for the termination of the office of clerk of the court 
of common pleas, held by simple appointment to fill a vacancy, is not 
fixed by the constitution, but subject to legislative enactment (Art. 
II, §20): State v. Neibling, 6 O. S. 40. 

In case of a vacancy in the office of clerk of the common pleas, 
the successor, elected by the electors of the county, is elected for the 
full term of three years, which will commence from and after the day 
of his election: State v. Neibling, 6 O. S. 40. 

The act of April 30, 1902 (95 O. L. 332), to amend § 2867 G. C., is 
unconstitutional and wholly void, because by it the general assembly 
has attempted (1) to exercise power not poss.essed by it to defer the 
commencement of the official terms of persons elected to the office of 
clerk of the court of common pleas to a date later than that fixed by 
the law in force when elected, and (2) to provide for vacancies in 
office which do not occur fortuitously: State, ex rel., v. Hall, 67 O. S. 
303. 

The legislature can not create a vacancy and fill the same by 
extending the period beyond that allowed by § 2, Art. X: State, ex rel., 
V. Harvey, 8 O. C. C. 599, 1 O. D. (N.P.) 124. 

He was elected clerk of court, November, 1894, for a term of three 
years, beginning the first Monday of August, 1895. May, 1897, he 
resigned, and M was appointed clerk pro tern by the county commis¬ 
sioners. It was held that M holds the office for the remainder of the 
term, that at the election in November, 1897, no one could be elected 
for the unexpired term, and that the person elected as clerk at such 
election was elected for the full term of three years, beginning on the 
first Monday of August, 1898: Harte v. Bode, 4 O. N. P. 421, 7 O. D. 
(N.P.) 74. 

The same result was reached by the supreme court in State, ex rel., 
V. Commissioners, 58 O. S. 384. 

A clerk of the court of common pleas holds his office until his 
successor is elected and qualified, even if the time of his successor’s 
qualifying and taking his office has been extended: State, ex rel., 
V. Killitz, 8 O. C. C. 30, 4 O. C. D. 509. 

1 Debates, 431, 551; 2 Debates, 134-139, 364, 396, 397, 400, 402, 
483-485, 685, 686, 695-698, 809, 810, 837, 860, 870. 

Judges remov- SECTION 17. Judgcs may be removed from office, by con¬ 

current resolution of both houses of the general assembly, if 
two-thirds of the members, elected to each house, concur therein; 
but, no such removal shall be made, except upon complaint, the 
substance of which shall be entered on the journal, nor, until 
the party charged shall have had notice thereof, and an oppor¬ 
tunity to be heard. 

1 Debates, 431; 2 Debates, 397, 398, 400, 402, 483-485, 685, 686, 
695-698, 810, 837, 860, 870. 

Section 18. The several judges of the supreme court, 
of the common pleas, and of such other courts as may be cre¬ 


ate. 


Powers and 
jurisdiction. 





247 


CONSTITUTION OF THE STATE OF OHIO OF 1851 . 


ated, shall, respectively, have and exercise such power and 
jurisdiction, at chambers, or otherwise, as may be directed by 
law. 

Cited; Atwood v. Whipple, 48 O. S. 308; Carey v. State, 70 O. S. 

121 . 

The power to grant an injunction in a case pending in the court 
of common pleas, can not constitutionally be conferred on the supreme 
court: Kent v. Mahaffy, 2 O. S. 498. 

Jurisdiction at chambers is incidental to, and grows out of the 
jurisdiction of the court itself. Tt is the power to hear and determine, 
out of court, such questions arising between the parties to a contro- 
vo;rsy, as might well be determined by the court itself, but which the 
legislature has seen fit to intrust to the judgment of a single judge, 
out of court, without requiring them to be brought before the court in 
actual session. It follows, that the jurisdiction of a judge at chambers 
can not go beyond the jurisdiction of the court to which he belongs, 
or extend to matters with which his court has nothing to do; and the 
constitution, in granting such jurisdiction at chambers to the judges 
of the several courts of the state as may be directed by law, is to be 
understood as limiting the jurisdiction of each to such subject-matters 
as are within the jurisdiction of his proper court, and to which it is 
ex vi termini limited: Railway v. Hurd, 17 O. S. 144. 

Powers of judges in chambers must be expressly granted by stat¬ 
ute: In re Jones Hocal Option Law, 8 O. C. C. (N.S.) 574, 19 O, C. D. 
386. 

1 Debates, 431; 2 Debates, 402, 484, 685, 686, 695-698, 810, 837, 860, 870. 

Section 19. The general assembly may establish courts 
of conciliation, and prescribe their powers and duties; but such 
courts shall not render final judgment in any case, except upon 
submission, by the parties, of the matter in dispute, and their 
agreement to abide such judgment. 

2 Debates, 390, 391, 402, 483-485, 685, 686, 695-698, 794, 805, 833, 837, 
860, 870. 

.Section 20. The style of all process shall be, “The State 
of Ohio;” all prosecutions shall be carried on, in the name, and 
by the authority, of the state of Ohio; and all indictments shall 
conclude, “against the peace and dignity of the state of Ohio.” 
(See Const. 1802, Art. Ill, § 12.) 

See Const. 1802, Art. Ill, § 12. 

Cited: Beamer v. State, 21 O. C. C. 440, 12 O. C. D. 4; State v. Ward, 
8 O. N. P. (N.S.) 561, 19 O. D. (N.P.) 744. 

Where it appears from the caption of an indictment that the prose¬ 
cution is carried on “in the name and by the authority of the state of 
Ohio,” it need not be again averred in the successive counts of the 
indictment; and if the indictment contains more than one count, and a 
nolle prosequi is entered as to the first, the remaining counts of the 
indictment will not thereby be rendered defective for want of that 
averment, where it is contained in the caption: Davis v. State, 19 O. 
S. 270. 

The act of April 20, 1874 (71 v. 146), giving a penalty of $150, to be 
recovered by civil action, to the party aggrieved by a railroad corpora¬ 
tion over-charging for the transportation of passengers or property, 
is not in contravention of this section of the constitution (see G. C. 
§§ 9002 and 9003): Railroad v. Cook, 37 O. S. 265. 

Cases for the violation of village ordinances, sent to the court of 
common pleas in pursuance of G. C. § 4539, should be tried in that court 
upon the affidavit filed before the mayor. Indictment of the accused is 
neither necessary nor proper: Finnical v. Cadiz, 61 O. S. 494. 

The constitution requires that all indictments shall conclude with 
the words “against the peace and dignity of the state of Ohio,” but 
those words are not required to be at the conclusion of each count of 
an indictment: Olenforf v. State, 64 O. S. 118. 

This section prescribing that indictments shall conclude with the 
phrase “against the peace and dignity of the state of Ohio,” does not 
require that its insertion at the end of each count, nor provide that the 
phrase shall end the count or indictment at the place of insertion: 
State V. Mulford, 12 O. D. (N.P.) 655. 

A second count in an indictment, concluding “against the peace and 
dignity of the state of Ohio, being a further description of the same 


Art.IV, § 19. 


Courts of con¬ 
ciliation. 


Style of process, 
prosecution, and 
indictment. 




248 


Art.IV, § 22. 


Supreme court 
commission. 


CONSTITUTION OF TUB STATE OP OHIO OP 1851 . 


transaction complained of in the first count of the indictment,” is not 
rendered invalid by the use of the additional words following the 
constitutional phraseology, but they may be disregarded as mere sur¬ 
plusage: State V. Stapely, 19 O. D. (N.P.) 110, 

Affidavits in minor criminal prosecutions need not conclude with 
the formal statements required in an indictment: Fendrick v. State, 
9 O. C. C. (N.S.) 49, 18 O. C. D. 724. 

The recovery of a penalty by civil instead of criminal proceedings 
is not a violation of this section providing for indictments in all prose¬ 
cutions: Guilbert v. Bank, 5 O. N. P. (N.S.) 209, 18 O. D. (N.P.) 115. 

A bastardy proceeding is not a criminal proceeding: State v. Ward, 
8 O. N. P. (N.S.) 561, 19 O. D. (N.P.) 744. 

2 Debates, 398, 402, 484, 485, 685, 686, 695-698, 810, 837, 960, 870. 


Section 22 [ 21 ]. A commission, which shall consist of 
five members, shall be appointed by the governor, with the advice 
and consent of the senate, the members of which shall hold office 
for the term of three years from and after the first day of Feb¬ 
ruary, 1876, to dispose of such part of the business then on the 
dockets of the supreme court, as shall, by arrangement between 
said commission and said court, be transferred to such com¬ 
mission; and said commission shall have like jurisdiction and 
power in respect to such business as are or may be vested in 
said court; and the members of said commission shall receive 
a like compensation for the time being, with the judges of said 
court. A majority of the members of said commission shall 
be necessary to form a quorum or pronounce a decision, and 
its decision shall be certified, entered, and enforced as the judg¬ 
ments of the supreme court, and at the expiration of the term 
of said commission, all business undisposed of shall by it be cer¬ 
tified to the supreme court and disposed of as if said commis¬ 
sion had never existed. The clerk and reporter of said court 
shall be the clerk and reporter of said commission, and the com¬ 
mission shall have such other attendants not exceeding in num¬ 
ber those provided by law for said court, which attendants said 
commission may appoint and remove at its pleasure. Any va¬ 
cancy occurring in said commission, shall be filled by appoint¬ 
ment of the governor, with the advice and consent of the senate, 
if the senate be in session, and if the senate be not in session, 
by the governor, but in such last case, such appointment shall 
expire at the end of the next session of the general assembly. 
The general assembly may, on application of the supreme court 
duly entered on the journal of the court and certified, provide 
by law, whenever two-thirds of such [each] house shall concur 
therein, from time to time, for the appointment, in like man¬ 
ner, of a like commission with like powers, jurisdiction and 
duties; provided, that the term of any such commission shall 
not exceed two years, nor shall it be created oftener than once 
in ten years. 

The power of the supreme court to vacate or modify its judgment 
or orders, after the term, extends, since the expiration of the supreme 
court commission, to the judgments and orders of that body as fully as 
to judgments and orders of the court: Murphy v. Swadner, 34 O. S. 672. 

The action of the commission in dismissing a proceeding in error, 
and overruling a motion to reinstate the same, is final; Atcherly v. 
Dickinson, 34 O. S. 537. 

The supreme court has no power to rehear a cause decided by the 
late supreme court commission on the ground that the same was 
erroneously determined: Maud v. Maud, 34 O. S. 540. 

In obedience to a joint resolution of the general assembly, March 
30, 1875, the above section was submitted to the people on the twelfth 
day of October, 1875, and adopted. The following statement shows the 




Art.V, § 1. 


249 

CONSTITUTION OP THE STATE OP OHIO OP 1851 . 

vote: Whole number of votes cast, 595,248; for the amendment, 339,076; 
ag-ainst the amendment, 98,561. 


ARTICLE V. 

ELECTIVE FRANCHISE. 

Section 1. Every white male citizen of the United States, Who may vote, 
of the age of twenty-one years, who shall have been a resident 
of the state one year next preceding the election, and of the 
county, township, or ward, in which he resides, such time as may 
be provided by law, shall have the qualifications of an elector, 
and be entitled to vote at all elections. (See Const. 1802, Art. 

IV. §§ I, 5 .) 

See Const. 1802, Art. IV, §§ 1, 5. 


I. Applied, cited, construed, re- III. Q,ualilteations of electors. 

ferred to, etc. IV. Entitled to vote at all elec- 

II. Definition of term “white.” tions. 

I. APPLIED, CITED, CONSTRUED, REFERRED TO, ETC. 

State, ex rel., v. Dudley, 1 O. S. 452, cited in dissenting opinion; 
State, ex rel., v. Ratterman, 58 O. S. 731; State, ex rel., v. Poston, 59 O. S. 
122; State, ex rel., v. Board of Deputy State Supervisors of Elections, 
80 O. S. 471; Ebbenpowell v. State, 14 O. C. C. 129, 7 O. C. D. 573; Otte 
V. State, 9 O. C. C. (N.S.) 293, 19 O. C. D. 203; State, ex rel., v. Kuhn, 
8 O. N. P. 197, 11 O. D. (N.P.) 321; Jackson v. Washington, 3 O. N. P. 
(N.S.) 453 [affirmed, without report, Washington v. Jackson, 75 O. S. 
573]; In re South Charleston Beal Law Election, 3 O. N. P. (N.S.) 373, 
50 Bull. 173; Columbus v. Board of Elections, 13 O. D. (N.P.) 452; Thomas 
V. University, 195 U. S. 207, 14 O. F. D. 433; cited by mistake in Ammon 
V. Johnson, 3 O. C. C. 263, 2 O. C. D. 149. 

II. DEFINITION OF TERM “WHITE.” 

For the technical legal meaning of “white,” see Gray v. State, 4 O. 
353; Jeffries v. Ankeny, 11 O. 372; Thacker v. Hawk, 11 O. 377; Lane v. 
Baker, 12 O. 237; Anderson v. Millikin, 9 O. S. 568; Monroe v. Collins, 
17 O. S. 665; Williams v. School Directors, W. 578. 

See note to Art. IV, § 1, of the constitution of 1802. 

This restriction on the elective franchise is now abrogated by the 
fourteenth and fifteenth articles of amendments to the federal constitu¬ 
tion. Article XIV, so far as it relates to this subject, is as follows: 
“All persons born or naturalized in the United States, and subject to 
the jurisdiction thereof, are citizens of the United States and of the state 
wherein they reside.” Article XV provides that, “1. The right of the 
citizens of the United States to vote shall not be denied or abridged by 
the United States or by any state, on account of race, color, or previous 
condition of servitude. 2. The congress shall have power to enforce 
this article by appropriate legislation.” Such legislation has been 
enacted by congress. 

III. QUALIFICATIONS OF EI^ECTORS. 

The act of April 13, 1863 (60 v. 80), “to enable qualified voters of 
this state, in the military service of this state or of the United States, 
to exercise the right of suffrage,” was intended to enable qualified voters 
of the state, in the military service, to vote, in accordance with its 
provisions, as well without as within the territorial limits of this state. 
The act is not clearly in conflict with any constitutional provision, and 
is, therefore, to be regarded as a constitutional and valid enactment. 
It does not purport to have such extra territorial operation and effect 
as would place its enactments beyond the legitimate sphere of the 
legislative power of the state, and so render them invalid: Lehman ’v. 
McBride, 15 O. S. 573. 

Persons residing in an asylum for disabled soldiers of the United 
States, at the time of an election, after the jurisdiction thereover had 
been restored to the state by the United States, and for the year next 
preceding the election, are to be regarded as residents of Ohio for the 
entire year, within the meaning of § 1, Art. V, of the state constitution, 
notwithstanding the fact that part of the year transpired while the 
jurisdiction was in the United States: Renner v. Bennett, 21 O. S. 431. 





Art.V, § 1. 


250 

CONSTITUTION OF THE STATE OF OHIO OF 1851. 


An inmate of a county infirmary, who has adopted the township in 
which the infirmary is situated as his place of residence, having no 
family elsewhere, and who possesses the other qualifications required 
by law, is entitled to vote in the township in which said infirmary is 
situated: Sturgeon v. Korte, 34 O. S. 525. 

A statute which authorizes a woman to act as notary public (act 
of April 26, 1898; 93 v. 405), was held to be unconstitutional since 
a notary public is an officer and must have the qualifications of an 
elector herein prescribed: State, ex rel., v. Adams, 58 O. S. 612. 

The act of 86 v. 221, creating a board of workhouse directors, com¬ 
posed of females for the female department creates an office, and this 
can only be held by electors: State, ex rel., v. Rust, 4 O. C. C. 329, 
2 O. C. D. 577. 

The act of conferring school suffrage on women does not contravene 
this section: State, ex rel., v. Columbus, 9 O. C. C. 134, 6 O. C. D. 36 
[affirmed, without report. Mills v. Columbus, 54 O. S. 631]. 

The village marshal and councilmen must be citizens of the United 
States: State, ex rel., v. Collister, 6 O. C. C. (N.S.) 33, 17 O. C. D. 529. 

The legislature is not authorized to require another or different 
character of residence within the subdivisions than is required by the 
constitution within the state: Wickham v. Coyner, 12 O. C. C. (N.S.) 433, 
20 O. C. D. 765. 

When no record of naturalization can be produced, evidence that 
a person having the requisite qualifications to become a citizen did in 
fact and for a long time vote and hold office, and exercise rights 
belonging to citizens, is sufficient to warrant a jury in inferring that 
he has been duly naturalized as a citizen: Boyd v. Thayer, 143 U. S. 
135. 

This section does not render invalid a statute which provides for 
the election of judges on a non-partisan ballot (G. C. § 5054-1, et seq.): 
State, ex rel., v. Miller, 87 O. S. —. 

IV. EIVTITI.ED TO VOTE AT AEL ELECTIONS. 

“The general principle which pervades the constitution on this sub¬ 
ject, is, that no one shall be allowed to participate in the election of 
officers whose jurisdiction will not extend over him, or territorially 
include the place of his residence; but that the electors of each district 
or civil subdivision of the state, shall have the right to select their own 
official representatives, or public functionaries. And, keeping in view 
the limitations to which we have referred, there can be but little danger 
of misunderstanding what is meant by an elector’s right ‘to vote at all 
elections.’ It is very clear that this phrase would not be correctly 
expounded, either by the words which counsel propose to add, or by any 
other words having reference solely to the place at which an election 
may be held. For, in the case of an election for officers in the militia, 
though it might be held at the residence of a person having the 
qualifications of a general elector of the state, yet, if by reason of age, 
disability or otherwise, such person is not ‘subject to military duty,’ 
he has no right to vote at such election. We think that, under a 
proper construction of the constitution, persons having the qualifica¬ 
tions of an elector, may justly claim ‘a right to vote at all elections’ 
of officers of the state, and of such other civil officers as, by the 
provisions of the constitution and laws, are to be chosen by the electors 
of the county, township, ward or district in which such persons 
respectively reside. And whatever terms may be regarded as most 
opposite for the expression of this idea, we trust enough has been said 
to show that the place of holding an election is not the criterion, 
and furnishes no essential part of the test, which limits the elector’s 
right to vote ‘at all elections.’ Besides, a right to vote at all elections, 
does not import, as counsel seem to suppose, a right to vote at all 
places of holding elections. The election of a governor of the state, 
for example, is a single election, although the law provides for its 
being held simultaneously at more than a thousand different places 
within the state. A right to vote at all elections does not, therefore, 
import a right to vote at more than one of the places prescribed by 
law for holding an election, any more than it imports a right to vote 
more than once at the same place; nor is it necessary to supply a 
supposed ellipsis in order to avoid such a construction. We find 
nothing, then, in this section which refers, in the slightest degree, 
even by implication, to the place of holding elections. 

“Had it been the intention of the framers of our present constitution 
to fix or limit, by this section, the place at which the elective franchise 
should be exercised by the voters respectively, it is quite remarkable 
that no attempt should have been made to do so, in express terms; 
that such an important limitation of legislative power should have been 
left to be gathered from a supposed ellipsis—from something which 
is not said—or to be inferred from a declaration of the elector’s ‘right 
to vote at all elections.’ And it is the more remarkable because, in 
the corresponding section of the constitution of 1802, which defines the 
qualifications of electors, there was a clause of express limitation, in 
the following terms; ‘No person shall be entitled to vote, except in 





251 


CONSTITUTION OF THE STATE OF OHIO OF 1851. 


the county or district in which he shall actually reside at the time of 
the election.’ Now, the fact that this clause was wholly excluded from 
the present constitution, and no express limitation as to the place of 
voting- was inserted in its stead, would seem to be quite significant. It 
is in this part of the constitution, which treats solely of the elective 
franchise, that we should naturally expect to find, if anywhere, a re¬ 
striction limiting the place of its exercise. Here such restriction was 
placed, in express terms, by the constitution of 1802, and from this, 
its appropriate place, it was stricken out in the constitution of 1851, 
and inserted in no other place. On the contrary, the latter instrument 
declares, in the most general terms, that ‘county officers shall be 
elected ... in such manner ... as may be provided by law.’ 
And that officers, whose election is not provided for in the constitution, 
shall be elected ‘in such manner as may be directed by law.’ We think 
it may be very fairly inferred, that whilst the constitution defines 
the qualifications of electors, and prescribes by that portion of them 
all officers shall be chosen, it was intended to leave all further details, 
whether as to the place of holding elections, or the mode in which 
they should be conducted, to the wisdom of the legislature, to be 
provided for, and modified, from time to time, as the every-varying 
circumstances of the unknown future might seem to require. If pro¬ 
hibition was intended, why should the direct and express restriction 
of the former constitution have been rejected, and the matter left to 
vague conjecture and doubtful inference?”: Lehman v. McBride, 15 
O. S. 573. 

The legislature has no right directly or indirectly to deny or abridge 
the constitutional right of citizens to vote, or unnecessarily to impede 
its exercise; and laws passed professedly to regulate its exercise or 
prevent its abuse must be reasonable, uniform and impartial: Monroe 
V. Collins, 17 O. S. 665. 

When the constitutions of the state and of the United States are 
silent, the legislature may determine whether an office shall be filled 
by appointment or by election. If by the latter, each elector, under 
Art. V, has the right to vote for all candidates; and a statute providing 
for election of four police commissioners, and limiting the ballot to two, 
making the four persons receiving the highest number of votes the 
incumbents, is unconstitutional (Okey, J., concurred, on the ground 
that the act was a special one, conferring corporate powers, being 
thereby in conflict with § 1, Art. XIII, of the constitution): State v. 
Constantine, 42 O. S. 437. 

The general assembly, under the grant of legislative power secured 
to it by the constitution, has power to provide by statute for the regis¬ 
tration of voters, and to enact that all electors must register before 
being permitted to vote; but such an act must be reasonable in its 
requirements: Daggett v. Hudson, 43 O. S. 548. 

The requirement of § 6 (89 O. L. 434), G. C. § 4994, et seq., that 
certified nominations of candidates for public offices must be made by 
‘‘convention, caucus, meeting of qualified electors, primary election 
held by such electors or central or executive committee, representing 
a political party, which at the next preceding election polled at least 
one per cent, of the entire vote cast in the state” is not repugnant to 
any provision of the constitution: State, ex rel., v. Poston, 58 O. S. 620. 

*A statute which provides that in cities of over three hundred 
thousand the polls shall open at five-thirty in the morning standard time, 
and shall close at four o’clock in the afternoon, standard time, does not 
violate this provision of the statutes: Gentsch v. State, 71 O. S. 151. 

The statutes on the subject of primary elections (see G. C. § 4948, 
et seq., and § 13324, et seq.) are not rendered invalid by this section: 
State, ex rel., v. Felton, 77 O. S. 554. 

The provision of the local option statute to the effect that only 
registered voters shall be entitled to vote does not render it invalid 
under this section, since under G. C. § 4941, a voter who has moved 
after regular registration days is entitled to a certificate of transfer: 
Jeffrey v. State, ex rel., 4 O. C. C. (N.S.) 494, 16 O. C. D. 591 [affirmed, 
without report, Jeffrey v. State, ex rel., 72 O. S. 647]. 

The right to vote has its source in the constitution of the state, 
and the statute requiring registration in no way qualifies that right. 
It follows therefore, that the phrase ‘‘qualified electors,” as used in the 
statutes relating to local option elections, must be construed to mean 
an elector who is qualified to register within the proposed residence 
district, and not in the more restricted meaning of one who is not only 
qualified to register but actually has registered: In re Jones Law Peti¬ 
tion, 11 O. N. P. (N.S.) 241. 

A local option election is not invalid by reason of the insufficiency 
of the description of the ‘‘residence district” involved therein, where 
there is a map of the proposed district attached to the petition, and the 
description of the district by enumerating certain voting precincts 
presents no more difficulty with reference to venue than would be 


Art.V, § 




252 


Art.V, § 2. 


By ballot. 


CONSTITUTION OP THE STATE OP OHIO OP 1851. 


encountered in a prosecution for illegal voting: In re Jones Law Peti¬ 
tion, 11 O. N. P. (N.S.) 241. 

1 Debates, 693; 2 Debates, 8-10, 352, 550-555, 635-640, 811, 838, 860, 

870. 

Section 2. All elections shall be by ballot. (See Const. 

1802 , Art. IV, § 2 .) 

See Const. 1802, Art. IV, § 2. 

This section does not render unconstitutional a statute which re¬ 
quires the election of judges by a non-partisan ballot (G. C. § 5054-1, 
et seq.): State, ex rel., v. Miller, 87 O. S. —. 

The form of ballot, so long as it is a ballot, is left to the sound 
discretion of the general assembly: State, ex rel., v. Bode, 55 O. S. 224. 

The requirements of § 6 (89 O. L. 434), G. C. § 4992, et seq., that 
certified nominations of candidates for public offices must be made by 
“convention, caucus, meeting of qualified electors, primary election 
held by such electors or central or executive committee, representing 
a political party, which at the next preceding election polled at least 
one per cent, of the entire vote cast in the state” is not repugnant to 
any provision of the constitution: State, ex rel., v. Poston, 58 O. S. 620. 

The next contention is that G. C. § 13327, enacted April 20, 1904 
(97 V. 107), which provides that “no person shall be allowed to vote at • 
any primary election except he be an elector resident of the precinct 
ward or township in which he desires to vote and except he voted with 
the political party holding such primary election at the last general 
election, providing he voted at all at such election, unless he be a first 
voter.; nor shall any person vote more than one time, or at any other 
than'at the polling place in that precinct, ward or township wherein 
he resides,” conflicts with § 1, Art. V, of the constitution, which pre¬ 
scribes that, “every male citizen of the United States, of the age of \ 

twenty-one years who shall have been a resident of the state one year 

next preceding the election, and of the county, township or ward in 

which he resides such time as may be provided by law, shall have the 
qualifications of an elector, and be entitled to vote at all elections,” 
in this that it adds to the qualifications that entitle an elector to vote. 

If this contention is sound, then every elector has the constitutional 
right to vote at the primary election of every party. If the election 
is one at which merely the candidates of a party are to be selected, it 
can not be an objection that electors who do not belong to that party 
are not permitted to take part. That was one of the evils that the 
legislation was intended to prevent, and as to the test prescribed for 
determining an elector’s partisanship it is impossible to conceive of a 
political party without the possession by its members of some qualifica¬ 
tions, and the test prescribed by the statute is the usual one and is not 
unreasonable. 

But a primary election held merely to name the candidates of 
a political party is not an election within the meaning of this section 
of the constitution. That section refers to an election of officers and 
not to the nomination of candidates: State, ex rel., v. Felton, 77 O. S. 554. 

It is further contended that 5 2, of Art. V, of the constitution, which 
provides that, “all elections shall be by ballot,” is violated by the re¬ 
quirement that only known republican electors and those who will 
declare their belief in the principles of the republican party and their 
purpose to affiliate with it at the November election, shall be eligible 
to participate in said primary election, in that it will destroy the secrecy 
of the ballot. For present purposes it may be assumed that the word 
“ballot” as here used means a secret ballot, but there is no inhibition 
a.gainst the elector disclosing for whom he voted or intends to vote. 
Political parties have existed in this state for nearly a century. An 
elector can not belong to one without impliedly disclosing for whom 
he has voted or for whom he will vote, and in view of the party practice 
as it has so long prevailed of prescribing a requirement, like that in 
the statute, as a test of an elector’s right to act with the party, it is 
not apprehended that it will be contended that the practice has been 
in violation of the constitution, and if not, then it does not become so 
merely because it is recognized by the statute. Affiliation with the 
party and participation in the primary still are voluntary. Moreover, 
compliance with the requirement will not disclose that the elector voted 
for any particular candidate: State, ex rel., v. Felton, 77 O. S. 554. 

Article V, § 2, is taken literally from the former constitution of the 
state adopted in 1802. In a school for the study of English, it might 
be both interesting and useful to consider the meanings of the word 
“ballot” in primitive times, and the process by which its present meaning 
has been derived. But when the word was originally used as a part 
of the organic law of the state, the process of deriviation had been 
completed and its meaning in the connection had become plain and well 
understood. It was not doubted then, nor has it ever been really doubted 
since, that it is a printed or written expression of the voter’s choice 



253 


CONSTITUTION OF THE STATE OP OHIO OP 1851 . 


upon some material capable of receiving- and reasonably retaining it, 
prepared or adopted by each individual voter and passing by the act 
of voting from his exclusive control into that of the election officers, 
to be by them accepted as the expression of his choice. When the 
phrase was readopted, in our present constitution, this meaning of tne 
provision had been illustrated and made absolutely certain by repeated 
acts of legislation. It is conjectured that those who framed and adopted 
the constitution thought that a secret vote would contribute to the 
freedom with which the right of suffrage would be exercised, and the 
conjecture may be well founded. It is perhaps historically true that 
the two modes of voting in vogue at the time of the adoption of the 
constitution, were voting by ballot and voting viva voce, and that for 
many reasons the latter mode was rejected from the permanent policy 
of the state. But this does not aid the inquiry. The framers of the 
constitution did not place in the organic law the negative provision that 
the legislature shall not enact such law for the government of elections 
as would provide for voting viva voce, or communicate to the public 
a knowledge of the votes of the electors. What object they sought to 
accomplish by what they ordained may be the subject of divers con¬ 
jectures, but respecting what they ordained, there is no room for 
conjecture or doubt. They ordained that all elections shall be by ballot. 

It does appear from the statement of the case, that cardboards are 
attached to the machines bearing the names of candidates and the propo¬ 
sition and amendments, upon which the electors are to express a choice. 
These remain attached to the machine for the information of all voters. 
They do not pass into the control of any voter, nor by the act of voting 
into the control of the officers of the election. To speak of such a card¬ 
board as the ballot of the constitution is obviously paying but mock 
deference to that instrument: State, ex rel., v. Board of Deputy State 
Supervisors of Elections, 80 O. S. 471. 

The act of April 25, 1898 (93 O. D. 277), and the amendments thereto, 
being §§ 2966-54 to 2966-67, inclusive. Revised Statutes, to provide for 
the use of voting machines at elections, are void, because repugnant 
to § 2, Art. V, of the constitution, which ordains that “all elections” 
shall be by ballot; State, ex rel., v. Board of Deputy State Supervisors 
of Elections, 80 O. S. 471. 

1 Debates, 693; 2 Debates, 10, 811, 838, 860, 870. 

Section 3. Electors, during their attendance at elections, 
and in going to, and returning therefrom, shall be privileged from 
arrest, in all cases, except treason, felony, and breach of the 
peace. {See Const. 1802, Art. IV, § 3.) 

See Const. 1802, Art. IV, § 3. 

1 Debates, 693; 2 Debates, 10, 811, 838, 860, 870. 

Section 4. The general assembly shall have power to ex¬ 
clude from the privilege of voting, or of being eligible to office, 
any person convicted of bribery, perjury, or other infamous crime. 
{See Const. 1802, Art. IV, § 4.) 

See Const. 1802, Art. IV, § 4. 

Cited in dissenting opinion: State, ex rel., v. Dudley, 1 O. S. 452; 
Sturgeon v. Korte, 34 O. S. 525. 

This section is not a grant of power, but a limitation upon power 
otherwise generally granted: Mason v. State, ex rel., 58 O. S. 30. 

General Code § 13314, providing for the exclusion from the right of 
suffrage of one who sells his vote is within the express authority con¬ 
ferred upon the general assembly by § 4, of Art. V, of the constitution, 
to exclude “any person convicted of bribery, perjury or other infamous 
crime”: Grooms v. State, 83 O. S. 408. 

1 Debates, 693; 2 Debates, 10, 352, 811, 838, 861, 870. 

Section 5. No person in the military, naval, or marine 
service of the United States, shall, by being stationed in any 
garrison, or military, or naval station, within the state, be con¬ 
sidered a resident of this state. 

Inmates of an asylum provided by the United States for disabled 
volunteer soldiers, resident within the territory so used, being within 
the exclusive jurisdiction of a government other than that of the state 
within whose boundaries such asylum or territory may be situate, are 
not residents of such state within the meaning of this section of the 
constitution; and where the constitution of such state confers the 


Art.V, § 3. 


V'^oters, when 
privileged from 
arrest. 


Forfeiture of 
elective fran¬ 
chise. 


Persons not con¬ 
sidered residents 
of the state. 



254 


Art.V, §6. CONSTITUTION OF THE STATE OF OHIO OF 1851 . 


elective franchise upon residents thereof alone, the inmates of such 
asylum, residents within such territory, are not entitled to vote at any 
election held within and under the laws of such state: Sinks v. Reese, 
19 O. S. 306. 

Persons residing in said asylum at the time of an election, after 
the jurisdiction thereover had been restored to the state, and for the year 
next preceding the election, are to be regarded as residents of the state, 
and for the entire year, notwithstanding the fact that part of the year 
transpired while the jurisdiction was in the United States: Renner v. 
Bennett, 21 O. S. 431. 

1 Debates, 693; 2 Debates, 10, 811, 838, 861. 870. 


Idiots or insane Section 6 . No idiot, or insane person, shall be entitled 

persons. privileges of an elector. 

Cited: Sturgeon v. Korte, 34 O. S. 525; Wickham v. Coyner, 12 O. C. 
C. (N.S.) 433, 20 O. C. D. 765. 

The vote of a man otherwise qualified, who is neither a lunatic nor 
an idiot, but whose faculties are simply greatly enfeebled by age, ought 
not to be rejected: Sinks v. Reese, 19 O. S. 306. 

1 Debates, 693; 2 Debates, 10, 811, 838, 861, 870. 


Primary elections Section 7. All nominations for elective state, district, 

county and municipal offices shall be made at direct primary 

elections or by petition as provided by law, and provision shall 

be made by law for a preferential vote for United States sen¬ 

ator ; but direct primaries shall not be held for the nomination 
of township officers or for the officers of municipalities of less 
than two thousand population, unless petitioned for by a ma¬ 
jority of the electors of such township or municipality. All 
delegates from this state to the national conventions of political 
parties shall be chosen by direct vote of the electors. Each can¬ 
didate for such delegate shall state his first and second choices 
for the presidency, which preferences shall be printed upon the 
primary ballot below the name of such candidate, but the name 
of no candidate for the presidency shall be so used without his 
written authority. (Adopted September 3, 1912.) 

Vote: “Yes, 349,801; “No,” 183,112. 


ARTICLE VI. 

EDUCATION. 

Funds for edu- V SECTION 1. The principal of all funds, arising from the 
Hgfous^^pu^pos^s" or other disposition of lands, or other property, granted 

or entrusted to this state for educational and religious pur¬ 
poses, shall forever be preserved inviolate, and undiminished; 
and, the income arising therefrom, shall be faithfully applied 
to the specific objects of the original grants, or appropriations. 

Cited: State, ex rel., v. Toledo, 3 O. C. C. (N.S.) 468, 13 O. C. D. 327; 
State, ex rel., v. Zeeb, 9 O. C. C. 13, 6 O. C. D. 70; Shryock v. Railroad, 
6 O. L. R. 19, 53 Bull. 86. 

A law which authorizes the taxation of school lands immediately 
after sale thereof, as other lands in the state, does not contravene this 
section: State, ex rel., v. Purcel, 31 O. S. 352. 

A special act requiring the board of education of a city to release 
the sureties of a county treasurer from liability for school funds of 
the board, which came to the hands of the treasurer for disbursement, 
does not contravene this section: State, ex rel., v. Board of Education, 
38 O. S. 3. 

Lands donated by congress to the general assembly for school pur¬ 
poses are exempt from local improvement assessment: Poock v. Ely, 
4 O. C. C. 41, 2 O. C. D. 408. 

1 Debates, 693, 694; 2 Debates, 10, 11, 18, 698, 711, 821, 843; S61, 870. 





255 


CONSTITUTION OF THE STATE OF OHIO OF 1851. 


Section 2. The general assembly shall make such provi¬ 
sions, by taxation, or otherwise, as, with the income arising from 
the school trust fund, will secure a thorough and efficient system 
of common schools throughout the state; but no religious or 
other sect, or sects, shall ever have any exclusive right to, or 
control of, any part of the school funds of this state. 


I. Cited. III. Sy$4tem of common Hohools 

II. General assembly to make tlironprhout the state, 

provision for schools. IV. Control by sect. 

I. CITED. 

Finch V. Board of Education, 30 O. S. 37; Board v. Volk, 72 O. S. 469; 
State, ex rel., v. Board of Education, 76 O. S. 297; Quigley v. State, 5 
O. C. C. 638, 3 O. C. D. 310 [affirmed, without report, Quigley v. State, 
27 Bull. 332]; State v. Zeeb, 9 O. C. C. 13, 6 O. C. D. 70; Reid v. Board 
of Education, 6 O. N. P. (N.S.) 526, 16 O. D. (N.P.) 414; Board of Educa¬ 
tion V. Sawyer, 7 O. N. P. (N.S.) 401, 19 O. D. (N.P.) 1; Shryock v. Rail¬ 
road, 6 O. L. R. 19, 53 Bull. 86. 

II. GENERAL ASSEMBLY TO MAKE PROVISION FOR SCHOOLS. 

Section 78 of the tax law of 1859, as amended April 8, 1865 (62 v. 
105), which authorizes the taxation of school lands immediately after 
sale, as other lands in the state, is not in contravention of this section, 
where the payment of the purchase money, in whole or in part, is not 
defeated by such taxation: State v. Purcel, 31 O. S. 352. 

Lands donated by congress to the state of Ohio, for school purposes, 
are exempt from assessment for the expense of local improvements: 
I’oock V. Ely, 4 O. C. C. 41, 2 O. C. D. 408. 

The law conferring the right upon women to vote and be voted for 
at school elections is valid: State, ex rel., v. Columbus, 9 O. C. C. 134, 
6 O. C. D. 36 [affirmed, without report. Mills v. Board of Elections, 54 
O. S. 631]. 

This section does not render invalid the statute which provides for 
free textbooks in city school districts fsee G. C. § 7739): Mooney v. Bell, 
8 O. N. P. 658, 11 O. D. (N.P.) 786. 

The Boxwell law (G. C. § 7740, et seq.) does not contravene this 
section: State, ex rel., v. Board of Education, 8 O. N. P. 186, 11 O. D. 
(N.P.) 422 [affirmed. State, ex rel., v. Board of Education, 21 O. C. C. 
383, 12 O. C. D. 337]. 

See Art. I, § 7 (constitution 1851), and Art. VIII, § 25 (constitution 
1802). 

III. SYSTEM OP COMMON SCHOOLS THROUGHOLT THE STATE. 

See Art. I, § 19, and Art. II, § 26. 

The statute of March 14, 1853, “to provide for the reorganization, 
supervision, and maintenance of common schools,’’ is a law of classifi¬ 
cation, and not of exclusion, providing for the education of all youths 
within the prescribed ages; and the words “white” and “colored” as used 
in said act, are used in their popular and ordinary signification. 
Children of three-eights African blood, generally treated and regarded 
as colored children by the community where they reside, are not, as of 
right, entitled to admission into the common schools set apart, under 
said act, for the instruction of white youths: Van Camp v. Board of 
Education, 9 O. S. 406; State, ex rel., v. McCann, 21 O. S. 198. 

A special act requiring the board of education of a city to release 
the sureties of a county treasurer from liability for school funds of the 
board, which came to the hands of the treasurer for disbursement, does 
not contravene this section: State v. Board of Education, 38 O. S. 3. 

The supreme court originally held that the statutes on the subject 
of school districts were of a general nature and must under Art. II, 
§ 26, be of uniform operation throughout the state: State v. Powers, 
38 6. S. 54. 

This view was subsequently abandoned and it was held that statutes 
which created specific and special school districts were valid: State, 
ex rel., v. Shearer, 46 O. S. 275; see, to the same effect. State, ex rel., v. 
Board of Education, 7 O. C. C. 152, 3 O. C. D. 703. 

Ultimately this view was in turn abandoned and it was held that 
such statutes were of a general nature; must be uniform in operation; 
and statutes which created specific school districts were held to be 
unconstitutional: State, ex rel., v, Spellmire, 67 O. S. 77. 

A statute which attempted to make valid special school districts 
created under unconstitutional statutes, was itself held to be unconsti- 


Art.VI, § 2. 


School funds. 




256 


Art.VI, § 3. 


Public school 
system; boards of 
education. 


Superintendent of 
public instruction. 


Insane, blind, 
and deaf and 
dumb. 


CONSTITUTION OP THE STATE OP OHIO OF 1851 . 


tutional in Bartlett v. State, 73 O. S. 54; State v. Hickman, 5 O. C. C. 
(N.S.) 175, 17 O. C. D. 216. 

A statute providing- for pension funds for teachers in city school 
districts of second grade, first class, was held to be unconstitutional 
by virtue of Art. IT, § 26, as not having uniform operation throughout 
the state: State, ex rel., v. Kurtz, 21 O. C. C. 261, 11 O. C. D. 705, 

IV. CONTROL. BY SECT. 

The constitution of the state does not enjoin or require religious 
instruction, or the reading of religious books, in the public schools 
of the state: Board of Education v. Minor, 23 O. S. 211. 

The legislature having placed the management of the public schools 
under the exclusive control of directors, trustees and boards of educa¬ 
tion, the courts have no rightful authority to interfere by directing 
what instruction shall be giveh or what books shall be read therein: 
Board of Education v. Minor, 23 O. S. 211. 

A regulation of the board of education requiring the reading of the 
Bible, as an opening exercise in schools, is not in violation of this 
section: Nessle v. Hum, 1 O. N. P. 140, 2 O. D. (N.P.) 60. 

1 Debates, 693, 694; 2 Debates, 11-20, 698-700, 711, 821, 843, 861, 870 

Section 3. Provision shall be made by law for the organi¬ 
zation, administration and control of the public school system 
of the state supported by public funds: provided, that each 
school district embraced wholly or in part within any city shall 
have the power by referendum vote to determine for itself the 
number of members and the organization of the district bo^rd 
of education, and provision shall be made by law for the exer¬ 
cise of this power by such school districts. (Adopted Septem- 
her 3, 1912.) 

Vote: “Yes,” 298,460; “No,” 213,337. 

Section 4. A superintendent of public instruction to re¬ 
place the state commissioner of common schools, shall be in¬ 
cluded as one of the officers of the executive department to be 
appointed by the governor, for the term of four years, with the 
powers and duties now exercised by the state commissioner of 
common schools until otherwise provided by law, and with such 
other powers as may be provided by law. 

SCHEDULE. 

If the foregoing amendment be adopted by the electors it 
shall take effect and become a part of the constitution on the 
second Monday of July, 1913. (Adopted September 3, 1912.) 

Vote: “Yes,” 256,615; “No,” 251,946. 


ARTICLE VII. 

public institutions 

Section 1. Institutions for the benefit of the insane, blind, 
and deaf and dumb, shall always be fostered and supported by 
the state; and be subject to such regulations as may be pre¬ 
scribed by the general assembly. 

Cited: Auditor v. State, ex rel., 75 O. S. 114; State, ex rel., v. Kilgour, 
8 O. N. P. (N.S.) 617, 19 O. D. (N.P.) 670. 

The place of medical superintendent of a hospital for the insane 
under the act of March 27, 1876, is an “office”: State, ex rel., v. Wilson, 
29 O. S^ 347. 

The appropriation of $10,000 for Longview insane asylum (Hamilton 
county), contained in the act of April 15, 1880 (77 v. 249), is valid. The 
sole object was the making of a provision for the support of a public 
institution, which the constitution enjoins upon the general assembly; 
State, ex rel., v. Oglevee, 36 O. S. 211. 



257 


CONSTITUTION OF THE STATE OP OHIO OP 1851 . 


This provision of the statutes is not self-executed and the mode in 
which these statutes are to be fostered and supported is left to the 
discretion of the general assembly, which legislation is exercised by 
the passage of the statutes upon that subject (see G. C. § 1947, et seq.): 
State V. Kiesewetter, 37 O. S. 546. 

This section does not empower the general assembly to pass a law 
providing for the payment of certain sums at specified times to worthy 
blind persons. 97 v. 392 violates this section: Auditor v. State, ex rel., 
75 O. S. 114 [reversing Davies v. State, ex rel., 6 O. C. C. (N.S.) 417, 
17 O. C. D. 593]. 

1 Debates, 365, 539, 542, 543; 2 Debates, 340, 349, 700, 821, 843, 861, 

870. 


Section 2 . The directors of the penitentiary shall be ap¬ 
pointed or elected in such manner as the general assembly may 
direct; and the trustees of the benevolent, and other state in¬ 
stitutions, now elected by the general assembly, and of such 
other state institutions, as may be hereafter created, shall be 
appointed by the governor, by and with the advice and con¬ 
sent of the senate; and upon all nominations made by the gov¬ 
ernor, the question shall be taken by yeas and nays, and entered 
upon the journals of the senate. 

Cited: State, ex rel., v. Howe, 25 O. S. 588; State v. Wilson, 29 O. S. 
347; State, ex rel., v. Kilgour, 8 O. N. P. (N.S.) 617, 19 O. D. (N.P.) 670; 
Thomas v. University Treasurer, 195 U. S. 207, 14 O. F. D. 433. 

“The first clause of this section is in no way inconsistent or in 
conflict with the provisions of § 27, Art. II, but is in entire harmony 
with it. It in no w'ay qualifies or enlarges the exceptions to the 
general prohibition of any appointing power by the general assembly 
therein contained, but leaves that prohibition to operate with full force 
and effect. . . . The clause of § 2, Art. VII, that ‘the directors of 

the penitentiary shall be appointed or elected in such manner as the 
general assembly may direct,’ and that of § 27, Art. II, that ‘the election 
and appointment of all officers, and the filling of all vacancies not 
otherwise provided for by the constitution, or the constitution of the 
United States, shall be made in such manner as may be directed by 
law',’ are equivalent to each other. When the legislature ‘directs,’ it 
directs by law. Its appropriate voice is the voice of law. The pro¬ 
hibition attached by way of proviso, expressly to the one, applies 
equally to both, and is no more in conflict with the one than with the 
other’’: State v. Kennon, 7 O. S. 546. 

Longview asylum, though a public, is not a state institution, within 
the meaning of § 2, Art. VII, of the constitution, which requires the 
trustees of such institutions to be appointed by the governor; and § 723, 
Revised Statutes, providing for the appointment of directors of the 
asylum, otherwise than by the governor, is not in conflict with the 
above provision of the constitution: Chalfant v. State, ex rel., 37 
O. S. 60. 

1 Debates, 365, 539-542, 549; 2 Debates, 340-343, 349, 700, 821, 843, 
861, 870. 

Section 3. The governor shall have power to fill all va¬ 
cancies that may occur in the offices aforesaid, until the next 
session of the general assembly, and, until a successor to his ap¬ 
pointee shall be confirmed and qualified. 

It is manifestly the design of the constitution to secure to such 
office an incumbent who possesses the confidence and approval, not only 
of the governor, but also of the senate of the state. The only exception 
provided for is one of necessity, to-wit: An appointee to fill a vacancy, 
when the advice and consent of the senate is not attainable: State, 
ex rel v. Howe, 25 O. S. 588. 

1 Debates, 549; 2 Debates, 341, 349, 700, 821, 843, 861, 870. 

ARTICLE VIII. 

PUBLIC DEBT AND PUBLIC WORKS. 

Section 1. The state may contract debts to supply casual 
deficits-or failures in revenues, or to meet expenses not other¬ 
wise provided for; but the aggregate amount of such debts, 


Art. VII, § 2. 


Directors of pen¬ 
itentiary, trustees 
of benevolent 
and other state 
institutions: how 
appointed. 


Vacancies, how 
filled. 


Public debt. 



258 


Art. VIII, § 2. 


Additional, and 
for what pur¬ 
poses. 


The state to 
create no other 
debt. 


Credit of state: 
the state shall 
not become joint 
owner or stock¬ 
holder. 


CONSTITUTION OF THE S'J'ATE OF OHIO OF 1851. 


direct and contingent, whether contracted by virtue of one or 
more acts of the general assembly, or at different periods of 
time, shall never exceed seven hundred and fifty thousand dol¬ 
lars; and the money, arising from the creation of such debts, 
shall be applied to the purpose for which it was obtained, or to 
repay the debts so contracted, and to no other purpose whatever. 

Cited: Cass v. Dillon, 2 O. S. 607; Trustees v. Dillon, 16 O. S. 38; 
Walker v. Cincinnati, 21 O. S. 14. 

See, also, Art. VIII. §§ 2 and 3. 

1 Debates, 292, 466 to 472; 2 Debates, 313, 314, 362, 363, 392, 424 to 
426, 810, 837, 861, 870. 

Section 2. In addition to the above limited power, the 
state may contract debts to repel invasion, suppress insurrection, 
defend the state in war, or to redeem the present outstanding 
indebtedness of the state; but the money, arising from the con¬ 
tracting of such debts, shall be applied to the purpose for which 
it was raised, or to repay such debts, and to no other purpose 
whatever; and all debts, incurred to redeem the present out¬ 
standing indebtedness of the state, shall be so contracted as to 
be payable by the sinking fund, hereinafter provided for, as the 
same shall accumulate. , 

Cited: Cass v. Dillon, 2 O. S. 607; Trustees v, Dillon, 16 O. S. 38; 
Walker v. Cincinnati, 21 O. S. 14. 

See Art. II, § 28, and Art. VIII, §§ 1 and 3. 

1 Debates, 292, 466, 472; 2 Debates, 312-314, 426, 810, 837, 861, 870. 

Section 3. Except the debts above specified in sections 
one and two of this article, no debt whatever shall hereafter be 
created by or on behalf of the state. 

The natural and obvious meaning- of the first three sections of 
this article apply their limitations to the state alone, and not to her 
subdivisions: Cass v. Dillon, 2 O. S. 608; Walker v. Cincinnati, 21 
O. S. 14. 

The board of public works made contracts on behalf of the state, 
stipulating to pay yearly, for the period of five years, for materials 
and repairs of the canals of the state, an amount in the aggregate of 
$1,375,000.00: Held, 1. That except in certain specified cases, no debt 
of any kind can be created on behalf of the state. 2. That no officers of 
the state can enter into any contract, except in cases specified in the 
constitution, whereby the general assembly will, two years after, be 
bound to make appropriations either for a particular object or a 
fixed amount; the power and the discretion, intact, to make appro¬ 
priations, in general, devolving on each biennial general assembly, 
and for the period of two years, 3. The contracts of the board of 
public works creating a present obligation to pay for the period of 
five years a certain amount, do not come within said constitutional 
exceptions, and are in contravention of the provisions of § 3, Art. VIII, 
and § 2, Art. II: State v. Medberry, 7 O. S. 522. 

1 Debates, 292, 466, 472; 2 Debates, 313, 314, 426, 810, 837, 861, 870. 


Section 4. The credit of the state shall not, in any man¬ 
ner, be given or loaned to, or in aid of, any individual as¬ 
sociation or corporation whatever; nor shall the state ever here¬ 
after become a joint owner, or stockholder, in any company or 
association in this state, or elsewhere, formed for any purpose 
whatever. 

It was competent for the legislature, under the constitution of 
1802, to construct works of internal improvement, on behalf of the 
state, or to aid in their construction by subscribing to the capital 
stock of corporations created for that purpose, and to levy taxes to 
raise the means; and by an exercise of the same power, to authorize 
a county or township to subscribe to a work of that character, running 
through or into such county or township and to levy a tax to pay the 





259 


CONSTITUTION OP THE ST ATE, OP OHIO OP 1851. 


subscription: Railway v. Commissioners, 1 O. S. 77; Railway v. Trus¬ 
tees, 1 O. S. 105; Loomis v. Spencer, 1 O. S. 153; Cass v. Dillon, 2 O. S. 
607; Thompson v. Kelley, 2 O. S. 647; State, ex rel., v. Commissioners, 
6 O. S. 280; State v. Van Horne, 7 O. S. 327; State, ex rel., v. Trustees, 
8 O. S. 394; Trustees v. Cherry, 8 O. S. 564; State, ex rel., v. Commis¬ 
sioners, 11 O. S. 183; State, ex rel., v. Commissioners, 12 O. S. 596; 
Trustees v. Railway, 12 O. S. 624; Commissioners v. Nichols, 14 O. S. 
260; State, ex rel., v. Perrysburg, 14 O. S. 472; State, ex rel., v. Trus¬ 
tees, 14 O. S. 569; Walker v. Cincinnati, 21 O. S. 14. 

This and the two following sections prevent the state, county, city, 
town or township from engaging in any private enterprises: Raynolds 
V. Cleveland,' 13 O. D. (N.P.) 125. 

County agricultural societies are of a public character, are not 
corporations for profit and may receive aid from the state: Commis¬ 
sioners V. Brown, 1 O. N. P. (N.S.) 357, 14 O. D. (N.P.) 241. 

1 Debates, 292, 466, 472; 2 Debates, 313, 314, 426, 427, 810, 837, 861, 

870. 


Section 5. The state shall never assume the debts of any 
county, city, town, or township, or of any corporation what¬ 
ever, unless such debt shall have been created to repel invasion, 
suppress insurrection, or defend the state in war. 

This section is to be construed with the preceding section: Ray¬ 
nolds V. Cleveland, 13 O. D. (N.P.) 125. 

“The clear implications of this section are, that counties, cities, 
towns, and townships, may create debts to repel invasion, suppress 
insurrection, or defend the state in war, which the state may assume; 
and may also create debts for other purposes, which the state is 
forbidden to assume”: Walker v. Cincinnati, 21 O. S. 14. 

1 Debates, 292, 467, 472, 538; 2 Debates, 295, 313, 314, 427, 810, 837, 
861, 870. 


Section 6 . No laws shall be passed authorizing any county, 
city, town or township, by vote of its citizens, or otherwise, to 
become a stockholder in any joint stock company, corporation, 
or association whatever; or to raise money for, or to loan its 
credit to, or in aid of, any such company, corporation, or asso¬ 
ciation : provided, that nothing in this section shall prevent the 
insuring of public buildings or property in mutual insurance 
associations or companies. Laws may be passed providing for 
the regulation of all rates charged or to be charged by any 
insurance company, corporation or association organized under 
the laws of this state or doing any insurance business in this 
state for profit. (As amended September 3 , 1912 .) 

Vote: “Yes,” 321,388; “No,” 196,628. 

Original § 6 read as follows: “Sec. 6. [Counties, cities, towns, or 
townships, not authorized to become stockholders, etc.] The general 
assembly shall never authorize any county, city, town, or township, by 
vote of its citizens, or otherwise, to become a stockholder in any joint 
stock company, corporation, or association whatever; or to raise money 
for, or loan its credit to, or in aid of, any such company, corporation, 
or association.” 


I. Cited. IV. Railroads. 

II. Scope and effect. V. Other Improvements and 

III. Roads. public utilities. 

I. CITED. 

Commissioners v. Andrews, 18 O. S. 50; Goblet Co. v. Findlay, 5 
O. C. C. 418, 3 O. C. D. 205; Keehn v. Wooster, 13 O. C. C. 270, 7 O. C. D. 
456; Raynolds v. Cleveland, 13 O. D. (N.P.) 125; Insurance Co. v. Trus¬ 
tees, 53 Fed. 214, 7 O. F. D. 420; Clapp v. Marice City, 111 Fed. 103, 
49 C!. C. A. 251, 13 O. F. D. 704; Defiance v. Schmidt, 123 Fed. 1, 59 
C. C A. 159, 14 O. F. D. 408; Trustees v. Savings Institution, 128 U. S. 
510. 


Art.VIII, § 5. 


No assumption 
of debts by the 
state. 


Counties, cities, 
towns, or town¬ 
ships, not author¬ 
ized to become 
stockholders, etc. 
Insurance, etc. 




260 


Art.VIII, § 6. 


CONSTITUTION OF THE STATE OF OHIO OF 1851. 


II. SCOPE AND EFFECT. 

This section plainly refers to future leg-islation alone, and the acts 
it prohibits are not subscriptions under laws existing at the time of 
the adoption of the new constitution, but the making of any more 
such laws: Cass v. Dillon, 2 O. S. 607; State, ex rel., v. Trustees, 8 O. 
S. 394; Commissioners v. Nichols, 14 O. S. 260; State, ex rel., v. Perrys- 
burg, 14 O. S. 472; Thompson v. Kelly, 2 O. S. 647. 

“The mischief which this section interdicts is a business partner¬ 
ship between a municipality or subdivision of the state, and individ¬ 
uals or private corporations or associations. It forbids the union of 
public and private capital or credit in any enterprise whatever. In 
no project originated by individuals, whether associated or otherwise, 
with a view to gain, are the municipal bodies named permitted to 
participate in such manner as to incur pecuniary expense or liability. 
They may neither become stockholders nor furnish money or credit for 
the benefit of the parties interested therein. Though joint stock com¬ 
panies, corporations, and associations only are named, we do not doubt 
that the reason of prohibition would render it applicable to the case 
of a single individual. The evil would be the same, whether the public 
suffered from the cupidity of a single person, or from that of several 
persons associated together. As this alliance between public and pri¬ 
vate interests is clearly prohibited in respect to all enterprises, of 
whatever kind, if we hold that these municipal bodies can not do on 
their own account what they are forbidden to do on the joint account 
of themselves and private partners, it follows that they are powerless to 
make any improvement, however necessary, with their own means, 
and on their own sole account. We may be very sure ^that a purpose 
so unreasonable was never entertained by the framers of the constitu¬ 
tion”: Walker v.^ Cincinnati, 21 O. S. 14. 

Section 6, Art.* VIII, of the constitution, declares that “the general 
assembly shall never authorize any county, city, town, or township, 
by vote of its citizens or otherwise, to become a stockholder in any 
joint stock company, corporation, or association whatever; or to raise 
money for, or loan its credit to, or in aid of, any such company, cor¬ 
poration, or association.” What the general assembly is thus prohib¬ 
ited from doing directly, it has no power to do indirectly. Taxation 
can only be authorized for public purposes. Where, therefore, a 
statute authorizes a county, township, or municipality, to levy taxes 
not above a given per cent, on the taxable property of the locality, 
for the purpose of building so much of a railroad as can be built for 
that amount, and the part of a railroad so to be built can be of no 
public utility, unless used to accomplish an unconstitutional purpose 
such tax is illegal and can not be imposed. Where public credit or 
money is furnished by any of the subdivisions of the state learned, to 
be used in part construction of a work, which, under the statute 
authorizing its construction, must be completed, if completed at all, 
by other parties out of their own means, who are to own or have the 
beneficial control and management of the work when completed, the 
public money or credit thus used, can only be regarded as furnished 
for, or in aid of, such parties: Taylor v. Commissioners, 23 O. S. 22. 

See Art. VIII, § 4. 

III. ROADS. 

The act 64 v. 80, “to authorize the county commissioners to con¬ 
struct roads on petition of a majority of resident landowners along 
and adjacent to the line of said road,” etc., does not violate this sec¬ 
tion: State V. Commissioners, 17 O. S. 558. 

An ordinance by a village council, authorizing the condemnation 
of land for the purpose of having the county commissioners build an 
avenue thereon, under a special law granting them authority to do 
so, is not in contravention of this section: Purcell v. Riverside, 1 O. 
C. C. 12, 1 O. C. D. 7. 

General Code § 7405 authorizing county commissioners to purchase 
toll roads upon and along which suburban and interurban railroads 
are constructed and to maintain the same as free turnpikes, is not 
such part ownership as to conflict with this section: Perris v. Com¬ 
missioners, 9 O. C. C. (N.S.) 169, 19 O. C. D. 622. 

IV. RAILROADS. 

The act of May 4, 1869, “relating to cities of the first class having 
a population exceeding one hundred and fifty thousand inhabitants” 
(66 V. 80), authorizing such cities to construct a railroad terminating 
in and essential to the interests of themselves, and to borrow, as a 
fund for that purpose, a sum of money not exceeding ten millions of 
dollars, violates neither the express nor implied prohibitions of this 
section: Walker v. Cincinnati, 21 O. S. 14 [affirming Walker v. Cin¬ 
cinnati, 1 C. S. C. R. 121]. 




261 


CONSTITUTION OF THE STATE OP OHIO OF 1851. 


A statute which authorizes certain counties, townships, and cor¬ 
porations therein named (69 v. 84), to raise money by taxation for the 
purpose of constructing part of a railroad to be used as a part of the 
entire system in connection with the road of the private corporation, 
is invalid by reason of this constitutional provision: Taylor v. Com¬ 
missioners, 23 O. S. 22. 

Section 6, Art. VIII, of the constitution, inhibits the combination, 
in any form, of the public funds or credit of any county, city, town, or 
township with the capital of any other person or persons, corporated 
or unincorporated, for the purpose of promoting any private enterprise 
whatever. Hence, the act of April 6, 1880 (77 v. 119), “to authorize 
certain townships to build railroads, and to lease or operate the same,” 
Is unconstitutional and void: Wyscaver v. Atkinson, 37 O. S. 80. 

The act which provides for the sale of a railroad owned by a 
municipality is valid; a sale made in good faith and for a fair price 
can not properly be characterized as a loan of the credit of the munic¬ 
ipality, and although a per centum of the gross receipts is to be paid 
as a part of the purchase price: Cincinnati v. Dexter, 55 O. S. 93. 

If a municipal corporation owns a railway its lease of terminal 
facilities is not a violation of this section: Cincinnati v. Ferguson, 
12 O. D. (N.P.) 439 [affirmed, without report, Cincinnati v. Ferguson, 
66 O. S. 658]. 

The operation by a lessee company of a railroad owned by Cincin¬ 
nati in connection with other lines, which such lessee company may 
own or control, is not a combination of city with another, as to violate 
this section: Railway v. Railway, 2 O. N. P. (N.S.) 110, 16 O. D. (N.P.) 
777. 

A statute which authorizes any township which has a certain popu¬ 
lation to build a railway, is invalid by violation of this section and 
bonds issued under such statute are void: Trustees v. Insurance Co., 
138 U. S. 67, 6 O. F. D. 686 [affirming Insurance Co. v. Trustees, 62 Fed. 
718, 10 C. C. A. 611, 9 O. F. D. 218]. 

V. OTHER IMPROVEMENTS AND PUBLIC UTILITIES. 

Section 8, of 92 v. 606, which provides for the construction of water¬ 
works, if none be existing, or for the enlargement, improvement or 
addition to existing waterworks by the waterworks commissioners, 
and if they do not desire, they may contract with a company, etc., to do 
so, and provide for a lease back to the city and also for the purchase 
of the same, is invalid, because a city can not engage in an enterprise 
with an individual or corporation, which, as a completed whole, is to 
be owned and controlled in part by the city and in part by an individual 
or corporation: Alter v. Cincinnati, 56 O. S. 47 [modifying Ampt v. Cin¬ 
cinnati, 12 O. C. C. 119, 5 O. C. D. 356]. 

Under § 6, of Art. VIII, of the constitution, a city is prohibited from 
raising money for, or loaning its credit to, or in aid of, any company, 
corporation, or association; and thereby a city is prohibited from 
ow'ning part of a property which is owned in part by another, so that 
the parts owned by both, when taken together, constitute but one 
property. 

A city must be the sole proprietor of property in which it invests 
its public funds, and it can not unite its property with the property of 
individ-uals or corporations so that when united, both together form 
one property: Alter v. Cincinnati, 56 O. S. 47 [modifying Ampt v. 
Cincinnati, 12 O. C. C. 119, 5 O. C. D. 356]. 

A municipal corporation is without capacity to acquire land by 
purchase for the purpose of donating the same to a corporation or 
person as an inducement to build and operate manufacturing plants 
within its municipality: Markley v. Mineral City, 58 O. S. 430. 

In Zanesville v. Crossland, 8 O. C. C. 652, 4 O. C. D. 363, it was held 
that G. C. § 4022 authorizes a municipal corporation to make an agree¬ 
ment with a corporation for hospital service, was not in violation of 
this section. This case, however, was reversed without report in Cross¬ 
land V, Zanesville, 56 O. S. 735. 

A statute which provided that the deposit of public funds in public 
depositories is not rendered invalid by this section: State, ex rel., v. 
Bowers, 4 O. C. C. (N.S.) 345, 16 O. C. D. 326 [affirmed, without report. 
Bowers v. State, ex rel., 70 O. S. 423]. 

This section does not render invalid a contract whereby a private 
corporation agrees with a city to hire workhouse prisoners at a specified 
compensation: Fitzpatrick v. Brush Co., 5 O. N. P. 165, 7 O. D. (N.P.) 
216. 

State or county aid may be given to a county agricultural society: 
Commissioners v. Brown, 1 O. N. P. (N.S.) 357, 14 O. D. (N.P.) 241. 

Under this section a municipal corporation could not permit a street 
railway company to use the water pipes of a city for part of the return 
circuit of its electric current: Dayton v. Railway, 12 O. D. (N.P.) 258. 

1 Debates, 292, 467, 472, 538; 2 Debates. 300-314, 427, 810, 837, 861, 


Art.VIII, § 6. 


870 . 




262 


Art. VIII, § 7. 


Sinking fund. 


The commis¬ 
sioners of the 
sinking fund. 


Their biennial 
report. 


Application of 
sinking fund. 


Semi-annual 

report. 


CONSTITUTION OF THE STATE OF OHIO OF 1851. 


Section 7. The faith of the state being pledged for the 
payment of its public debt, in order to provide therefor, there 
shall be created a sinking fund, which shall be sufficient to pay 
the accruing interest on such debt, and, annually, to reduce the 
principal thereof, by a sum not less than one hundred thousand 
dollars, increased yearly, and each and every year, by corn¬ 
pounding, at the rate of six per cent, per annum. The said 
sinking fund shall consist, of the net annual income of the 
public works and stocks owned by the state, of any other funds 
or resources that are, or may be, provided by law, and of such 
further sum, to be raised by taxation, as may be required for 
the purposes aforesaid. 

A city is prohibited from owning part of a property which is owned 
by another, so that the parts owned by both when taken together form 
one property: Ampt v. Cincinnati, 12 O. C. C. 119, 5 O. C. D. 356, 37 
Bull. 128. 

1 Debates, 292, 467, 472-474, 476-492, 495-512, 514-524; 2 Debates, 
295-299, 312-314, 427, 810, 837, 861, 870. 


Section 8. The auditor of state, secretary of state, and 
attorney general, are hereby created a board of commissioners, 
to be styled, “The Commissioners of the Sinking Fund.” 

1 Debates, 292, 467, 524; 2 Debates, 313, 314, 427, 810, 837, 861, 870. 


Section 9. The commissioners of the sinking fund shall, 
immediately preceding each regular session of the general as¬ 
sembly, make an estimate of the probable amount of the fund, 
provided for in the seventh section of this article, from all 
sources except from taxation, and report the same, together with 
all their proceedings relative to said fund and the public debt, 
to the governor, who shall transmit the same with his regular 
message, to the general assembly; and the general assembly 
shall make all necessary provision for raising and disbursing 
said sinking fund, in pursuance of the provisions of this article. 

1 Debates, 292, 467, 524-537; 2 Debates, 299, 313, 314, 427, 810, 837, 
861, 870. 


Section 10. It shall be the duty of the said commissioners 
faithfully to apply said fund, together with all moneys that 
may be, by the general assembly, appropriated to that object, 
to the payment of the interest, as it becomes due, and the 
redemption of the principal of the public debt of the state, ex¬ 
cepting only, the school and trust funds held by the state. 

Cited by mistake: Kubach v. State, 1 O. N. P. (N.S.) 405. 

1 Debates, 292, 467, 537, 538; 2 Debates, 313, 314, 427, 810, 837, 861, 

870. 


Section 11. The said commissioners shall, semi-annually, 
make a full and detailed report of their proceedings to the 
governor, who shall, immediately, cause the same to be published, 
and shall also communicate the same to the general assembly, 
forthwith, if it be in session, and if not, then at its first ses¬ 
sion after such report shall be made. 

1 Debates, 292, 467, 537, 538; 2 Debates, 313, 314, 427, 810, 837, 838, 
861, 870. 




263 

CONSTITUTION OF THE STATE OF OHIO OF 1851. 

Section 12 . So long as this state shall have public works 
which require superintendence, a superintendent of public works 
shall be appointed by the governor for the term of one year, 
with the powers and duties now exercised by the board of 
public works until otherwise provided by law, and with such 
other powers as may be provided by law. (As amended Sep¬ 
tember 3 , 1912 .) 

Vote: “Yes,” 296,635; “No,” 214,829. 

Original § 12 read as follows: “Sec. 12. [Board of public works.] 
So long as this state shall have public works which require superintend¬ 
ence, there shall be a board of public works, to consist of three members, 
who shall be elected by the people, at the first general election after 
the adoption of this constitution, one for the term of one year, one for 
the term of two years, and one for the term of three years; and one 
member of said board shall be elected annually thereafter, who shall 
hold his office for three years.” 

Cited: State, ex rel., v. Railway, 37 O. S. 157; Commissioners v. 
Board of Public ’SVorks, 39 O. S. 628. 

The board of public works is an agency of the state and can not 
be sued when the state is the real party in interest: Ley v. Kirtley, 
5 O. N.-P. (N.S.) 529, 18 O. D. (N.P.) 280. 

1 Debates, 292, 467, 537, 538; 2 Debates, 300, 362, 427, 810, 838, 861, 

870. 


Section 13 . [Repealed September 3 , 1912 .] 

Vote: “Yes,” 296,635; “No,” 214,829. 

Original § 13 read as follows: “Sec. 13. The powers and duties of 
said board of public works, and its several members, and their com¬ 
pensation, shall be such as now are, or may be, prescribed by law.” 

See Art. VIII, § 3. 

No powers can be exercised by the board under laws existing when 
the constitution took effect, unless such laws are consistent with the 
provisions of the constitution. “The laws referred to are only such 
as are in harmony with the constitution”: State v. Medberry, 7 O. S. 522. 

The powers and duties of the board of public works are prescribed 
in great detail in the statutes relating to the public works of the state 
(see G. C. §§ 404 to 486): State, ex rel., v. Railway, 37 O. S. 157. 

The board of public works possesses no powers except such as are 
expressly conferred by law, or as are necessarily implied: State, ex rel., 
V. Railway, 3 7 O. S. 174. 

The board of public works is an agency of the state and can not 
be sued when the state is the real party in interest: Ley v. Kirtley, 
5 O. N. P. (N.S.) 529, 18 O. D. (N.P.) 280. 

1 Debates, 292, 467, 538; 2 Debates, 427, 810, 838, 861, 862, 870. 


ARTICLE IX. 

MILITIA. 

Section 1. All white male citizens, residents of this state, 
being eighteen years of age, and under the age of forty-five 
years, shall be enrolled in the militia, and perform military duty, 
in such manner, not incompatible with the constitution and 
laws of the United States, as may be prescribed by law. 

For the meaning of the word “white,” see Art. V, § 1, of this consti¬ 
tution, and Art. IV, § 1, of the constitution of 1802. 

For commutation of military duty by money payments, see Art. XII, 
§ 1, and note thereto. 

Cited by mistake: Watterson v. Halliday, 2 O. N. P. (N.S.) 693, 
15 O. D. (N.P.) 271. 

By this section it is made the duty of all persons therein designated 
“to perform military duty” and a full discretion, limited only by the 
constitution and laws of the United States, is given to the general 
assembly to prescribe the manner in which that duty shall be performed 
and in the choice of means to enforce its performance: Houston v. 
Wright, 15 O. S. 318. 

1 Debates, 191, 449-458, 461-464; 2 Debates, 220, 346-352, 651, 687, 688, 
695, 821, 843, 862, 870. 


Art.VIII, § 12. 


Superintendent of 
public works. 


Who shall per¬ 
form military 
duty. 





264 


Art. IX, § 2. 


What officers to 
be elected, and 
by whom. 


Same subject. 


Governor to com¬ 
mission officers, 
and have power 
to call forth the 
militia. 


Public arms. 


County and 
township officers. 


CONSTITUTION OF THE STATE OF OHIO OF 1851 . 


•Section 2. Majors general, brigadiers general, colonels, 
lieutenant colonels, majors, captains,. and subalterns, shall be 
elected by the persons subject tOi.military duty, in their respective 
districts. (See Const. 1802, Art. V.) 

See Const. 1802, Art. V. 

1 Debates, 191, 464-466; 2 Debates, 220, 346, 350, 651, 688, 695, 821, 
843. 862, 870. 


Section 3. The governor shall appoint the adjutant gen¬ 
eral, quartermaster general, and such other staff officers, as 
may be provided for by law. Majors general, brigadiers general, 
colonels, or commandants of regiments, battalions, or squad¬ 
rons, shall, severally, appoint their staff, and captains shall ap¬ 
point their non-commissioned officers and musicians. (See 
Const. 1802, Art. V.) 

See Const. 1802, Art. V, 

A law authorizing county commissioners to provide a 'suitable 
place for an armory for the Ohio national guard and to pay the cost 
thereof is void: Hubbard v. Fitzsimmons, 57 O. S. 436; State, ex rel., 
V. Brinkman, 7 O. C. C. 165, 3 O. C. D. 710. 

1 Debates, 191, 465, 466; 2 Debates, 220, 346, 348, 350, 651, 688, 695, 
821, 843, 862, 870. 


Section 4. The governor shall commission all officers of 
the line and staff, ranking as such; and shall have power to 
call forth the militia, to execute the laws of the state, to 
suppress insurrection, and repel invasion. (See Const. 1802, 
Art. V.) 

See Const. 1802, Art. V. 

Cited by mistake: Cable v. Alvord, 27 O. S. 654; Derby v. Heath, 
59 O. S. 54. 

“The faithful execution of the laws when enacted, expounded and 
applied by the courts to cases, when necessary, is confined to the 
executive. The militia is an arm of the executive power. * * * 
Not a word is found in the constitution giving countenance to the 
opinion sometimes expressed, and more frequently felt, that the 
militia, or military force, instead of being a means to be employed by 
the executive department in executing the important duty of executing 
the laws, are a distinct department, equal to either of the others, and 
independent of their control”: State v. Coulter, W. 421. 

2 Debates, 350, 651, 688, 695, 821, 843, 862, 870. 


Section 5. The general assembly shall provide, by law, 
for the protection and safe keeping of the public arms. 

A law authorizing county commissioners to provide for a suitable 
place for an armory for the Ohio national guard and to pay the cost 
thereof is in violation of this section: State, ex rel., v. Brinkman, 
7 O. C. C. 170, 3 O. C. D. 710; State, ex rel., v. Kreighbaum, 9 O. C. C. 
619, 6 O. C. D. 654 [affirmed, without report. State, ex rel., v. Com¬ 
missioners, 54 O. S. 615]. 

1 Debates, 191, 466; 2 Debates, 220, 346, 651, 688, 695, 821, 843, 
862, 870. 

ARTICLE X. 

COUNTY AND TOWNSHIP ORGANIZATIONS. 

Section 1. The general assembly shall provide, by law, 
for the election of such county and township officers as may 
be necessary. (See Const. 1802, Art. VI, §§ i, 3.) 

See Const. 1802, Art. VI, §§ 1, 3. 




265 

CONSTITUTION OP THE STATE OP OHIO OP 1851 . 


I. Cited. 

II. Municipalities. 


III. Officers must be elected. 


I. CITED. 

State V. Powers, 38 O. S. 54; State, ex rel., v. Smith, 44 O. S. 348; 
State, ex rel., v. Commissioners, 54 O. S. 333; Mason v. State, ex rel., 
58 O. S. 30; State, ex rel., v. Brown, 60 O. S. 462; State v. Krause, 
1 O. N. P. 91, 1 O. D. (N.P.) 122. 

II. MPNICIPALITIES. 

The constitution did not create the municipalities of the state, nor 
does it attempt to enumerate their powers. It recognizes them as things 
already in being, with powers that will continue to exist, so far as 
they are consistent with the organic law, until modified or repealed: 
Cass V. Dillon. 2 O. S. 607. 

This section has no relation to city and village officers: State, 
ex rel., v. Covington, 29 O. S. 102. 

III. OFFICERS MI ST BE ELECTED. 

Jury commissioners are not officers within the meaning of this or 
the following section; and, accordingly, they may be appointed: State 
V. Kendle, 52 O. S. 346. 

The office of fish and game warden provided for by a former 
statute (R. S. § 409; 85 v. 171), wasi held to be an office within the 
meaning of this section; and such statute which provided for filling 
such office by appointment, was held to be unconstitutional: State, 
ex rel., v. Halliday, 61 O. S. 171; see, also. State, ex rel., v. Lewis, 

5 O. N. P. 394, 5 O. D. (N.P.) 371; French v. Shirley, 7 O. N. P. 26, 

9 O. D. (N.P.) 181. 

A building committee appointed to supervise the construction of 
a courthouse are not county officers and must not be elected: Commis¬ 
sioners V. Pargillis, 10 O. C. C. 376, 6 O. C. D. 717, 3 O. D. (N.P.) 585 
[affirmed, without report. Commissioners v. Pargellis, 53 O. S. 680]. 

The persons to be appointed in counties by the “Ohio humane 

society,’’ as provided by G. C. § 10062, et seq., are not officers within 

the meaning of §§ 1 and 2 of this article: Beamer v. State, 21 O. C. C. 
440, 12 O. C. D. 4. 

The superintendent of a county children’s home is not an officer 
within the meaning of this section: State, ex rel., v. McGonagle, 5 
O. C. C. (N.S.) 292, 16 O. C. D. 685. 

A tax collector is not an officer; and he may be appointed by the 
treasurer under statutory authority: State, ex rel., v. Gibson, 1 
O. N. P. (N.S.) 565, 14 O. D. (N.P.) 513. 

A tax inquisitor is not an officer and may be appointed: State, 
ex rel., v. Gilfillan, 3 O. N. P. (N.S.) 153, 15 O. D. (N.P.) 756. 

An assistant prosecuting attorney is not an officer within the 
meaning of this section, and may be appointed by the prosecutor: 
State, ex rel., v. Taylor, 3 O. N. P. (N.S.) 505, 16 O. D. (N.P.) 66; see, 
also. State, ex rel., v. Hynicka, 17 O. D. (N.P.) 378 [affirmed, sub 

nomine. High v. State, ex rel., 10 O. C. C. (N.S.) 182]. 

Where it becomes necessary for a county officer, in the proper 

administration of the duties of his office, to procure assistance of 

counsel or attorney at law other than the prosecuting attorney, he 
may employ such counsel or attorney for any special occasion, pro¬ 
vided the county commissioners assent to and order such employ¬ 

ment and fix the compensation (see G. C. §2412): State, ex rel., v. 
Cannon, 12 O. C. C. (N.S.) 162, affirmed by the supreme court, without 
report. Cannon v. State, ex rel., 80 O. S. 756, distinguished; State v. 
Struble, 9 O. N. P. (N.S.) 225. 

The deputy state supervisors of elections are not officers within 
the meaning of this section, and may be appointed: State, ex rel., v. 
Craig, 8 O. N. P. 148, 10 O. D. (N.P.) 577. 

On appeal it was held that injunction to restrain the payment of 
compensation to such officers was not the proper method of raising 
the question of the constitutionality of such statute: State, ex rel., 
V. Craig, 21 O. C. C. 175, 11 O. C. D. 553 [affirmed, without opinion, in 
State, ex rel., v. Craig, 64 O. S. 588]. 

The appointment of a stationary storekeeper by clerk of court of 
common pleas is void, as it contravenes this section: State, ex rel., 
V. Brennan, 49 O. S. 33. 

2 Debates, 565, 640-642, 644, 654, 810, 838, 862, 870. 


Section 2 . County officers shall be elected on the first Coum 
Tuesday after the first Monday in November, by the electors 
of each county in such manner, and for such term, not exceed¬ 
ing three years, as may be provided by law. (As amended 
October 13, 1885; 82 v. 446.) 


Art.X,'§ 2. 


’ officers, 
elected. 




266 


Art.X, § 3 . CONSTITUTION OP THE STATE OF OHIO OF 1851 . 


Amended October 13, 1885; 82 v. 446. 

As to time of holding elections, term of office, etc., see Art. XVII, 
§§ 1, 2, 3. 

Original § 2 read as follows: “Sec. 2. [County officers; when 
elected.] County officers shall be elected on the second Tuesday of 
October, until otherwise directed by law, by the qualified electors of 
each county, in such manner, and for such term, not exceeding three 
years, as may be provided by law.” (See Const. 1802, Art. VI, § 1.) 

Cited: State, ex rel., v. Killitts, 8 O. C. C. 30, 4 O. C. D. 509; State, 
ex rel., v. Thompson, 9 O. C. C. 161, 6 O. C. D. 106. 

The period for the expiration of the term of office of a county 
treasurer, held by appointment to fill a vacancy, is subject to legis¬ 
lative control: State, ex rel., v. Commissioners, 7 O. S. 126. 

The power to fix the times of holding elections for county officers 
is vested by the constitution in the legislature, and when a time has 
been so fixed by that body, any election for such officers held at a 
different time is unauthorized and void: State, ex rel., v. Dombaugh, 
20 O. S. 167. 

Where the term of an office is fixed and limited by the constitution, 
there is no power in the general assembly to extend the term or 
tenure of such office beyond the time so limited: State, ex rel., v. 
Brewster, 44 O. S. 589. 

By virtue of Art. IV, § 16, the office of clerk of court is exempt 
from this section: State, ex rel., v. McCracken, 51 O. S. 123. 

The provisions of Art. X, of the constitution, requiring the general 
assembly to provide by law for the election of county officers, and 

that such officers shall be elected on the first Tuesday after the first 

Monday in November, disable the general assembly to provide by law 
for an interval between the official terms of a sheriff and one elected 
to succeed him: State, ex rel., v. Heffner, 59 O. S. 368. 

That the office of fish and game warden provided for by a former 
statute (R. S. § 409; 85 v. 171) was an office within the meaning of 
this section and that the legislature could not provide for filling the 
same by appointment, see State, ex rel., v. Halliday, 61 O. S. 171; 

see, also. State, ex rel., v. Hewis, 5 O. N. P. 394, 5 O. D. (N.P.) 371; 

French v. Shirley, 7 O. N. P. 26, 9 O. D. (N.P.) 181. 

Where a county auditor has served three years, his^term of office 
expires and a vacancy has “happened in his office,” notwithstanding 
the fact that his successor does not take his seat until several months 
after the expiration of the former officer’s term: Robbins v. Commis¬ 
sioners, 2 O. C. C. 23, 1 O. C. D. 340. 

A statute making the term of the members of the board of control 
five years is void: State, ex rel., v. Alter, 5 O. C. C. 253, 3 O. C. D. 127. 

The legislature can not create a vacancy and fill same by extend¬ 
ing period beyond that allowed by § 2, Art. X: State, ex rel., v. Harvey, 
8 O. C. C. 599, 4 O. C. D. 227. 

In so far as G. C. § 2408 (as amended to conform to this ruling) 
attempted to authorize the appointment of legal counsel by county 
commissioners, it contravened the provision that all county officers 
shall be elected: State, ex rel., v. Cannon, 12 O. C. C. (N.S.) 103, 21 
O. C. D. 236. 

An assistant prosecuting attorney is not an officer of government 
within the meaning of this section; so that, in special counties having 
no solicitor, said assistant may be detailed to aid the county com¬ 
missioners: State, ex rel., v. Taylor, 3 O. N. P. (N.S.) 505, 16 O. D. 
(N.P.) 66. 

2 Debates, 565, 640-644, 654, 810, 838, 862, 870. 


Eligibility of SECTION 3. No pcrsoii sliall be eligible to the office of 

tJeasurer.*'^ sheriff, Of couiity treasurer, for more than four years, in any 
period of six years. (See Const. 1802, Art. VI, § i.) 

See Const. 1802, Art. VI, § 1. 

The power to take from the office of sheriff a material part of 
long-recognized and accustomed duties, create a new office, and confer 
such duties on its incumbent, so that the latter will have complete 
power with respect to such duties, to the exclusion of the sheriff, may 
well be doubted: Hulse v. State, 35 O. S. 421. 

That the practice existing at the time of the adoption of the con¬ 
stitution may be changed, and the powers and duties of the sheriff, in 
some respects, increased or diminished, can not be doubted: Hulse v. 
State, 35 O. S. 421. 

The provisions of Art. X, of the constitution, requiring the general 
assembly to provide by law for the election of county officers, and that 
such officers shall be elected on the first Tuesday after the first Monday 
in November, disable the general assembly to provide by law for an 



266 a 


CONSTITUTION OF THE STATE OP OHIO OF 1851 . 


interval between the official terms of a sheriff and one elected to 
succeed him: State, ex rel., v. Heffner, 59 O. S. 368. 

The general provisions of the constitution do not limit conflicting 
provisions of an amendment to the constitution that are specific and 
temporary. Section 3, Art. X, of the constitution, that “No person 
shall be eligible to the office of sheriff, or county treasurer, for more 
than four years in any period of six years,” is not applicable to the 
act entitled, “An act to conform the terms of office of various state 
and county officers to the constitutional provisions of (relating to) 
biennial elections,” 98 v. 271: State, ex rel., v. Harris, 77 O. S, 481. 

The object of the constitutional amendment. Art. XVII, and of the 
act of April 16, 1906 (98 v. 271), passed pursuant thereto, was the 
continuance in office of the incumbents during the interregnum occa¬ 
sioned thereby, and a sheriff whose term of office was extended under 
the act, is not ineligible, under § 3, of Art. X, of the constitution, to 
succeed hjmself for another term: State, ex rel., v. Pontius, 78 O. S. 353. 

2 Debates, 565, 643, 644, 654, 810, 838, 862, 870. 

Section 4. Township officers shall be elected by the elect¬ 
ors of each township, at such time, in such manner, and for 
such term, not exceeding three years, as may be provided by 
law; but shall hold their offices until their successors are elected 
and qualified. {As amended October 13, 1885: 82 v. 449.) 

As amended October 13, 1885; 82 v. 449. 

Original § 4 read as follows: “Sec. 4. [Township officers; when 
elected.] Township officers shall be elected on the first Monday of 
April annually, by the qualified electors of their respective townships, 
and shall hold their offices for one year, from the Monday next suc¬ 
ceeding their election, and until their successors are qualified.” 

For time of holding elections, terms of office, etc., under constitu¬ 
tional amendment, see Art. XVII, §§ 1, 2, 3. 

Cited: State, ex rel., v. Howe, 25 O. S. 588; State v. Barbee, 45 
O. S. 347; State v. McCracken, 51 O. S. 123. 

A building committee appointed to supervise the construction of 
a courthouse are not county officers, and must not be elected: Com¬ 
missioners V. Pargillis, 10 O. C. C. 376, 6 O. C. D. 717. 

Decennial district assessors are not township officers within the 
moaning of this section: Hirsch v. Commissioners, 12 O. D. (N.P.) 679. 

2 Debates, 565, 644, 654, 810, 825, 838, 862, 870. 

Section 5. No money shall be drawn from any county 
or township treasury, except by authority of law. 

Cited: Commissioners v. Andrews, 18 O. S. 49; State, ex rel., v. 
Yates, 66 O. S. 546 [reversing State, ex rel., v. Yates, 21 O. C. C. 686, 
12 O. C. D. 298]; Jones v. Commissioners, 2 O. C. C, (N.S.) 14, 15 O. C. D. 
510; State, ex rel., v. Commissioners, 13 O. D. (N.P.) 97. 

The board of county commissioners has no power, under the con¬ 
stitution and laws of Ohio, to employ an attorney to prosecute crim¬ 
inal complaints before the examining magistrates of the county, except 
in cases in which the county, in its quasi corporate capacity, has a 
direct interest. Nor can the board of commissioners be compelled, by 
mandamus, to pay for such services out of the county treasury: State, 
ex rel., v. Commissioners, 21 O. S. 648. 

Neither fees nor compensation for county officials can be paid out 
of the treasury unless there is constitutional authority therefor: Rich¬ 
ardson V. State, ex rel., 66 O. S. 108 [affirming Richardson v. State, 
ex rel., 19 O. C. C. 191, 10 O. C. D. 458]. 

The board of county commissioners may pass upon and adjudicate 
legal claims against the county for services, but they can not allow 
invalid claims, and an attempt by the board to allow a claim of such 
character will not bind the county. Such payment may be recovered: 
Printing Co. v. State, 68 O. S. 362. 

One who has furnished material or labor for the county under 
contract, which is invalid by reason of failure to advertise properly 
for bids (Bridge Co. v. Campbell, 60 O. S. 406): or by reason of failure 
to file service showing there is money in the treasury (State v. Fron- 
i 2 :er, 2 O. N. P. (N.S.) 373, 15 O. D. (N.P.) 1), can not be recovered upon 
such contract nor can he recover reasonable compensation therefor. 
If, however, compensation for such material and work has been paid 
to the contractor, such payment can not be recovered from him on the 
ground that no service was filed showing that there was money in the 
treasury or process of collection: State, ex rel., v. Fronizer, 77 O. S. 7 
[affirming State, ex rel., v. Fronizer, 8 O. C. C, (N.S.) 216, 18 O. C. D. 
709, which affirmed State, ex rel., v. Fronizer, 3 O. N, P, (N.S.) 303, 
15 O. D. (N.P.) 613]. 


Art.XII, § 4. 


Township officers, 
when elected. 


County and town¬ 
ship treasuries. 




266 b 


Art.X, § 6. 


What officers may 
be removed. 


Local taxation. 


CONSTITUTION OP THE STATE OF OHIO OF 1851 . 


The unconstitutionality of a method provided by law for making' 
special assessments to pay bonds issued by a county to pay for road 
improvements, if conceded, does not affect the validity of the bonds as 
obligations of the county, nor the right of the holder to recover Judg¬ 
ment thereon: Commissioners v. Savings Institution, 119 Fed. 36, 56 
C. C. A. 614, 15 O. F. D. 33. 

2 Debates, 565, 644, 654, 810, 825, 838, 862, 870. 


Section 6 . Justices of the peace, and county and town¬ 
ship officers, may be removed, in such manner and for such 
cause, as shall be prescribed by law. 

Cited: State, ex rel., v. McLain, 58 O. S. 313. 

There is no requirement that the power of removal, that may be 
prescribed by law, shall be conferred on the courts, for the legislature 
is to provide the manner, as well as the cause, of removal: State, 
ex rel., v. Hawkins, 44 O. S. 98. 

This section applies only to county and township officers, and not 
to officers of municipal corporations: Dorgan v. Columbus, 12 O. D. 
(N.P.) 121. 

1 Debates, 298; 2 Debates, 151, 318, 566, 633, 664, 810, 838, 862, 870. 


Section 7. The commissioners of counties, the trustees 
of townships, and similar boards, shall have such power of local 
taxation, for police purposes, as may be prescribed by law. 

Cited: Trustees v. Dillon, 16 O. S. 38; State, ex rel., v. Commission¬ 
ers, 17 O. S. 558; Rees v. Olmstead, 135 Fed. 296, 68 C. C. A. 50, 14 
O F. D. 737. 

If a county or township can incur debts, it can levy taxes to pay 
them, notwithstanding such tax is not for police purposes: Cass v. 
Dillon, 2 O. S. 607. 

The construction of drains by townships, in cases where the public 
health, convenience, or welfare demands it, is within the meaning of 
“police purposes”: Sessions v. Crunkilton, 20 O. S. 349 [followed in 
Taylor v. Crawford, 72 O. S. 560]. 

Manifestly, this is no limitation on the power of the general 
assembly; and an act requiring county commissioners to cause a des¬ 
ignated road to be improved, and to levy a tax to defray the expense 
thereof, where the road is open to the public, is not invalid for want 
of power in the general assembly to pass it: State, ex rel., v. Com¬ 
missioners, 35 O. S. 458. 

This section does not prevent the general assembly from authorizing 
the state board of health to compel municipal corporations to install 
sewage purification works: Board of Health v. Greenville, 86 O. S. 1 
[reversing Greenville v. Demorest, 14 O. C. C. (N.S.) 113]. 

The act, entitled “An *act to authorize the commissioners of the 
counties of Putnam, Wood, and Henry to levy a tax to pay for certain 
fees therein named,” and being the fees of a surveyor for work done 
in the construction of a joint ditch by said counties, is not in conflict 
with this section: State, ex rel., v. Commissioners, 41 O. S. 423. 

An act which attempts to authorize any county to raise money to 
secure the location therein of the Ohio agricultural experiment sta¬ 
tion, by a tax upon all taxable property within such county, contra¬ 
venes Art. XH, § 2, and can not be sustained under this section: Wasson 
V. Commissioners, 49 O. S. 622. 

The recovery and tax levy authorized by the act for the suppres¬ 
sion of mob violence (92 v. 136; see G. C. § 6285) are within the general 
powers of the legislature and provision of this section: Commissioners 
V. Church, 62 O. S. 318 [affirming Mitchell v. Commissioners, 10 O. C. D. 
801, which reversed Mitchell v. Commissioners, 5 O. N. P. 158, 5 O. D. 
<'N.P.) 262, and reversing Caldwell v. Commissioners, 15 *0. C. C. 167, 
8 O. C. D. 56, which affirmed Caldwell v. Commissioners, 4 O. N. P. 249, 
6 O. D. (N.P.) 367]. 

A law authorizing county commissioners to provide a suitable 
place for an armory for the Ohio national guard and pay the cost 
thereof, is void: State, ex rel., v. Brinkman, 7 O. C. C. 165, 3 O. C. D. 710; 
State, ex rel., v. Commissioners, 9 O. C. C. 619, 6 O. C. D. 654 [affirmed, 
without report. State, ex rel., v. Commissioners, 54 O. S. 615]. 

Gas wells, pipe lines, pumping stations and machinery owned by a 
municipal corporation and used by it for the conveyance of gas to be 
consumed by it and by its citizens generally, are used exclusively for 
a public purpose and are exempt from taxation: Toledo v. Hosier, 
54 O. S. 418 [reversing Toledo v. Hosier, 10 O. C. C. 257, 6 O. C. D. 590]. 






266 o 


CONSTITUTION OP THE STATE OP OHIO OP 1851 . 


This section is not a limitation on the power of the general assem¬ 
bly: Loeb V. Trustees, 91 Fed. 37, 12 O. F. D. 349 [reversed on other 
ground, Loeb v. Trustees, 179 U. S, 472]. 

Whether under this section a township can incur any debts or levy 
any taxes except for police purposes, was discussed in Bank v. 
Trustees, 98 Fed. 524, 13 O. F, D. 318, but not there decided. 

2 Debates, 565, 644, 747, 748, 775, 794, 805, 833, 838, 862, 870. 


ARTICLE XI. 

APPORTIONMENT. 

Section 1. The apportionment of this state for members 
of the general assembly shall be made every ten years, after the 
year one thousand eight hundred and fifty-one, in the following 
manner: The whole population of the state, as ascertained by 
the federal census, or in such other mode as the general assembly 
may direct, shall be divided by the number “one hund.»*ed,” and 
the quotient shall be the ratio of representation in the house 
of representatives, for ten years next succeeding such apportion¬ 
ment. 

Cited: State, ex rel., v. Campbell, 48 O. S. 435. 

“The apportionment of the state must be regarded as made by the 
convention, and none the less so because the approval of the people 
was made necessary to its ultimate effect. They but ratified and 
approved an act already done by their representatives in convention, 
and were not, in any correct sense, the authors of the act itself”: 
State, ex rel., v. Dudley, 1 O. S. 437. 

“The constitution apportions political power among the inhabit¬ 
ants of the state, as nearly equally as possible in proportion to num¬ 
bers, without any regard whatever to property, or, indeed, to any other 
circumstance. Inhabitants alone are represented: a given number in 
one place exercise the same political power, as a like number in any 
other locality. Some departure from the absolute equality of numbers 
is allowed in favor of the inhabitants of small counties, in the con¬ 
stitution of the house of representatives; but this in no wise changes 
the basis of representation from population to territory or property”: 
State, ex rel., v. Dudley, 1 O. S. 437, 

1 Debates, 460; 2 Debates, 5, 6, 708, 748, 767, 781, 811-813, 845, 846, 
862, 870. 

Section 2. Every county having a population equal to 
one-half of said ratio, shall be entitled to one representative; 
every county, containing said ratio, and three-fourths over, shall 
be entitled to two representatives; every county containing three 
times said ratio, shall be entitled to three representatives; and 
so on, requiring after the first two, an entire ratio for each 
additional representative. Provided, however, that each county 
shall have one representative. [As amended November 3, 1902: 
95 V. 967-] 

As amended November 3, 1902; 95 v. 967. 

The vote adopting this amendment was “Yes,” 757,505; “No,” 26,497. 

Original § 2 reads as follows: “Sec. 2. [Same subject.] Every 
county having a population equal to one-half of said ratio, shall be 
entitled to one representative; every county, containing said ratio, 
and three-fourths over, shall be entitled to two representatives: every 
county, containing three times said ratio, shall be entitled to three 
representatives: and so on, requiring after the first two, an entire 
ratio for each additional representative.” 

1 Debates, 460; 2 Debates, 6, 708, 748-751, 782, 846, 862, 870. 

Section 3. When any county shall have a fraction above 
the ratio, so large, that being multiplied by five, the result will 
be equal to one or more ratios, additional representatives shall 
be apportioned for such ratios, among the several sessions of 
the decennial period, in the following manner: If there be only 


Art.XI, § 1. 


Apportionment 
for members of 
the general as¬ 
sembly ; ratio 
of representa¬ 
tion in house. 


Same subject. 


Same subject. 




266d 


Art.XI, § 4. 


Same subject. 


Same subject. 


Ratio for a 
senator. 


Senatorial dis¬ 
tricts. 


CONSTITUTION OF THE STATE OF OHIO OF 1851. 


one ratio, a representative shall be allotted to the fifth session 
of the decennial period; if there are two ratios, a representative 
shall be allotted to the fourth and third sessions, respectively; 
if three, to the third, second, and first sessions, respectively; 
if four, to the fourth, third, second, and first sessions, respect¬ 
ively. 

Cited: State, ex rel., v. Campbell, 48 O. S. 435. 

1 Debates, 460; 2 Debates, 6, 708, 751-753. 756-766, 781, 782, 820, 
846, 862, 870. 

Section 4. Any county, forming with another county or 
counties, a representative district, during one decennial period, 
if it have acquired sufficient population at the next decennial 
period, shall be entitled to a separate representation, if there 
shall be left, in the district from which it shall have been 
separated, a population sufficient for a representative; but no 
such change shall be made, except at the regular decennial 
period for the apportionment of representatives. 

Cited: State, ex rel., v. Campbell, 48 O. S. 435. 

1 Debates, 460'; 2 Debates, 6. 708, 765, 766, 782, 846, 862, 870. 

Section 5. If, in fixing any subsequent ratio, a county, 
previously entitled to a separate representation, shall have less 
than the number required by the new ratio for a representative, 
such county shall be attached to the county adjoining it, having 
the least number of inhabitants; and the representation of the 
district, so formed, shall be determined as herein provided. 

Cited: State, ex rel., v. Campbell, 48 O. S. 435. 

1 Debates, 460; 2 Debates, 6, 708, 766, 767, 782, 846, 862, 870. 

Section 6 . The ratio for a senator shall forever, here¬ 
after, be ascertained by dividing the whole population of the 
state by the number thirty-five. 

Cited: State, ex rel., v. Campbell, 48 O. S. 435. 

1 Debates, 460; 2 Debates, 7, 708, 766, 782, 846, 862, 870. 

Section 7. The state is hereby divided into thirty-three 
senatorial districts, as follows: The county of Hamilton shall 
constitute the first senatorial district; the counties of Butler 
and Warren, the second; Montgomery and Preble, the third; 
Clermont and Brown, the fourth; Greene, Clinton, and Fayette, 
the fifth; Ross and Highland, the sixth; Adams, Pike, Scioto, 
and Jackson, the seventh; Lawrence, Gallia, Meigs, and Vinton, 
the eighth; Athens, Hocking, and Fairfield, the ninth; Franklin 
and Pickaway, the tenth; Clark, Champaign, and Madison, the 
eleventh; Miami, Darke, and Shelby, the twelfth; Logan, Union, 
Marion and Hardin, the thirteenth; Washington and Morgan, 
the fourteenth; Muskingum and Perry, the fifteenth; Delaware 
and Licking, the sixteenth; Knox and Morrow, the seventeenth; 
Coshocton and Tuscarawas, the eighteenth; Guernsey and Mon¬ 
roe, the nineteenth; Belmont and Harrison, the twentieth; Car- 
roll and Stark, the twenty-first; Jefferson and Columbiana, the 
twenty-second; Trumbull and Mahoning, the twenty-third; 
Ashtabula, Lake, and Geauga, the twenty-fourth; Cuyahoga, the 
twenty-fifth; Portage and Summit, the twenty-sixth; Medina 
and Lorain, the twenty-seventh; Wayne and Holmes, the twenty- 
eighth; Ashland and Richland, the twenty-ninth; Huron, Erie 



CONSTITUTION OF THE STATE OF OHIO OF 1851 . 


Art.XI, § 8. 


Sandusky and Ottawa, the thirtieth; Seneca, Crawford, and 
Wyandot, the thirty-first; Mercer, Auglaize, Allen, Van Wert, 
Paulding, Defiance, and Williams, the thirty-second; and Han¬ 
cock, Wood, Lucas, Fulton, Henry and Putnam, the thirty-third: 
For the first decennial period, after the adoption of this con¬ 
stitution, each of said districts shall be entitled to one senator, 
except the first district, which shall be entitled to three senators. 

Cited: State, ex rel., v. Campbell, 48 O. S. 435. 

“The whole state is divided into districts, and the limits of each 
clearly and definitely fixed. These limits were, in every instance, 
described by the county lines, as they existed when the constitution 
was adopted by the convention—the boundaries of counties being- 
referred to and adopted, from convenience and propriety, as the boun¬ 
daries of districts; and thus making the limits of each district as 
certain as though it had been marked out by natural or artificial 
objects. While the counties remained, as they then were, of course, 
no one of them could be divided, so as to fall into different districts. 
But while the boundaries of counties, to a certain extent, and districts, 
were fixed upon the same lines, they were yet independent of each 
other; so that whatever changes might be made in county limits, the 
lines of the districts remained as before, subject only to such changes 
as are provided for in the constitution itself”: State, ex rel., v. Dudley 
1 O. S. 437. 

1 Debates, 460, 461; 2 Debates, 7, 709, 710, 783-787, 822, 823 846 

862, 870. 


Section 8 . The same rules shall be applied, in appor¬ 
tioning the fractions of senatorial districts, and in annexing 
districts, which may hereafter have less than three-fourths of 
a senatorial ratio, as are applied to representative districts. 

Cited: State, ex rel., v. Dudley, 1 O. S. 437; State, ex rel., v. Camp¬ 
bell, 48 O. S. 435. 

1 Debates, 460; 2 Debates, 7, 708, 766-771, 781, 782, 846, 862, 870. 


Section 9. Any county forming part of a senatorial dis¬ 
trict, having acquired a population equal to a full senatorial 
ratio, shall be made a separate senatorial district, at any regular 
decennial apportionment, if a full senatorial ratio shall be left 
in the district from which it shall be taken. 

Cited: State, ex rel., v. Dudley, 1 O. S. 437; State, ex rel., v. Camp¬ 
bell, 48 O. S. 435. 

2 Debates, 708, 767, 782, 846, 863, 870. 


Section 10. For the first ten years, after the year one 
thousand eight hundred and fifty-one, the apportionment of rep¬ 
resentatives shall be as provided in the schedule, and no change 
shall ever be made in the principles of representation, as herein 
established, or, in the senatorial districts, except as above pro¬ 
vided. All territory, belonging to a county at the time of any 
apportionment, shall, as to the right of representation and suf¬ 
frage, remain an integral part thereof, during the decennial period. 

Cited: State, ex rel., v. Dudley, 1 O. S. 437; State, ex rel., v. Camp¬ 
bell, 48 O. S. 435. 

“The exception contained in this section refers to the eighth and 
ninth sections. * * * The provisions of this section irrevocably fix 

the districts, and apportion the representation for ten years. At the 
expiration of that period, other sections of the eleventh article direct 
specifically in what manner the executive officers, charged with the 
duty, shall ascertain and fix it, for another period of ten years. It Is 
manifest that no change, alteration, or modification of the representa¬ 
tive districts, is allowed between the periods of decennial apportion¬ 
ment; unlike the senate districts, they are not forever to remain 
unchanged. On the contrary, they must, of necessity at the expiration 


Same subject. 


Same subject. 


Apportionment 
of representatives 
for ten years. 






266f 


Art.XI, § 11. 


When the gover¬ 
nor, auditor, aud 
secretary of state 
to determine 
ratio of repre¬ 
sentation. 


Judicial purposes. 


First district. 


Second district. 


Third district. 


Fourth district. 


Fifth district. 


CONSTITUTION OF THE STATE OF OHIO OF 1851. 


of each ten years, so change as to conform to the boundaries of coun¬ 
ties, as they are then found to exist; and the limits of districts, at 
those periods, become again identical with those of counties”: State, 
ex rel., v. Dudley, 1 O. S. 437. 

1 Debates, 460; 2 Debates, 7, 708, 767, 771, 782, 846, 863, 870. 


Section 11 . The governor, auditor, and secretary of 
state, or any two of them, shall, at least six months prior to 
the October election, in the year one thousand eight hundred 
and sixty-one, and, at each decennial period thereafter, ascertain 
and determine the ratio of representation, according to the de¬ 
cennial census, the number of representatives and senators each 
county or district shall be entitled to elect, and for what years 
within the next ensuing ten years, and the governor shall 
cause the same to be published, in such manner as shall be di¬ 
rected by law. 

Cited: State, ex rel., v. Maxfield, 9 O. C. C. 26, 6 O. C. D. 11. 

Where the governor, auditor and secretary of state, or a majority 
of them, as the board created by § 11, of Art. XI, of the constitution, 
for the decennial apportionment of the state for members of the 
general assembly, have made an apportionment, they can not be re¬ 
quired, by mandamus or otherwise, to make another apportionment, 
unless the apportionment as made so far disregards the principles 
prescribed by the constitution as to warrant the court in saying that 
it is no apportionment and should be treated as a nullity: State, 
ex rel., v. Campbell, 48 O. S. 435. 

1 Debates, 460; 2 Debates, 7, 708, 767, 782, 846, 863, 870. 


JUDICIAL APPORTIONMENT. 

Section 12 . For judicial purposes, the state shall be 
apportioned as follows: 

The county of Hamilton, shall constitute the first district, 
which shall not be subdivided; and the judges therein, may hold 
separate courts or separate sittings of the same court, at the 
same time. 

The counties of Butler, Preble, and Darke, shall constitute 
the first subdivision; Montgomery, Miami, and Champaign, the 
second; and Warren, Clinton, Greene, and Clark, the third 
subdivision, of the second district; and, together, shall form 
such district. 

The counties of Shelby, Auglaize, Allen, Hardin, Logan, 
Union, and Marion, shall constitute the first subdivision; Mer¬ 
cer, Van Wert, Putnam, Paulding, Defiance, Williams, Henry, 
and Fulton, the second; and Wood, Seneca, Hancock, Wyandot, 
and Crawford, the third subdivisio-n, of the third district; and, 
together, shall form such district. 

The counties of Lucas, Ottawa, Sandusky, Erie, and Huron, 
shall constitute the first subdivision; Lorain, Medina, and Sum¬ 
mit, the second; and the county of Cuyahoga, the third sub¬ 
division, of the fourth district; and, together, shall form such 
district. 

The counties of Clermont, Brown, and Adams, shall consti¬ 
tute the first subdivision; Highland, Ross, and Fayette, the 
second; and Pickaway, Franklin, and Madison, the third sub¬ 
division, of the fifth district; and, together, shall form such 
district. 



Art.XI, § 13. 


266 g 

CONSTITUTION OF THE STATE OF OHIO OF 1851 . 


The counties of Licking, Knox, and Delaware, shall con¬ 
stitute the first subdivision; Morrow, Richland, and Ashland, 
the second; and Wayne, Holmes, and Coshocton, the third sub¬ 
division, of the sixth district; and, together, shall form such 
district. 

The counties of Fairfield, Perry, and Hocking shall consti¬ 
tute the first subdivision; Jackson, Vinton, Pike, Scioto, and 
Lawrence, the second; and Gallia, Meigs, Athens, and Wash¬ 
ington, the third subdivision, of the seventh district; and, to¬ 
gether, shall form such district. 

The counties of Muskingum and Morgan, shall constitute 
the first subdivision; Guernsey, Belmont, and Monroe, the sec¬ 
ond; and Jefferson, Harrison, and Tuscarawas, the third sub¬ 
division, of the eighth district; and, together, shall form such 
district. 

The counties of Stark, Carroll, and Columbiana, shall con¬ 
stitute the first subdivision; Trumbull, Portage, and Mahoning, 
the second; and Geauga, Lake, and Ashtabula, the third sub¬ 
division, of the ninth district; and, together, shall form such 
district. ' I ""i 

Cited: District Court Case, 34 O. S. 431; State, ex rel., v. McCarty, 
52 O. S. 363. 

2 Debates, 823, 824, 840, 841, 846, 847, 863, 870. 


Section 13. The general assembly shall attach any new 
counties,'that may hereafter be erected, to such districts, or sub¬ 
divisions thereof, as shall be most convenient. 

“This section very clearly applies to any new county erected after 
the adoption of the constitution by the convention. This construction 
does not require any effect to be given to the constitution before the 
first of September, but after it has taken effect, it directs the general 
assembly what to do with counties erected after the tenth of March, 
or, in other words, it imperatively requires the general assembly, 
acting under the constitution, to attach all counties created after that 
date, to some convenient district and subdivision”: State, ex rel., v. 
Dudley, 1 O. S. 437. 

2 Debates, 824, 847, 863, 870. 


ARTICLE NIL 

FINANCE AND TAXATION. 


Section 1. . No poll tax shall ever be levied in this state, 
or service required, which may be commuted in money or other 
thing of value. (As amended September 3, 1912.) 

Vote: “Yes,” 269,039; “No,” 248,864 

Original §1 read as follows: “Sec. 1. [Poll tax.] The levying of 
taxes by the poll, is grievous and oppressive; therefore, the general 
assembly shall never levy a poll tax, for county or state purposes. (See 
Const. 1802, Art. VIII, § 23.)” 

See Const. 1802, Art. VIII, § 23. 


Cited: Slatmyer v. Springborn, 1 O. N. P. (N.S.) 15J. 

The provisions of Art. XII, of the constitution of Ohio, are not 
erants of power to the legislature, but limitations and restrictions on 
the general powers conferred by Art. II, §1. Thus, Art. XII, which 
relates to taxation, is not a delegation of authority to raise revenue, 
Tut a limitation of that power as conferred by Art. II, §1: Telegraph 
Co. V. Mayer, 28 O. S. 521. 


Sixth district. 


Seventh district. 


Eighth district. 


Ninth district. 


New counties 
attached. 


Poll tax. 



266 h 


Art.XII, § 2. 


Taxation by uni¬ 
form^ rule; ex¬ 
emption. 


CONSTITUTION OP THE STATE OP OHIO OP 1851 . 


In forming- the constitution of this state, the necessity for taxation 
■was recognized on the one hand, and the dangers incident to the 
exercise of the power on the other; and to provide what was necessary 
for the one, and against the dangers of the other. Art. XII, of the 
present constitution was adopted. It prohibits one form of odious 
taxation and forbids the contracting of debts by the state for internal 
improvements, which might be so used as to create a necessity for 
oppressive taxation: Chamberlain v. Cleveland, 34 O. S. 551. 

This section forbids a poll tax of a possible method of taxation: 
Adler v. Whitbeck, 44 O. S. 539. 

The prohibition upon a poll tax shows that the property, and not 
the person of the owner, is the subject of taxation: Creech v. Railway, 

2 O. N. P. 164, 3 O. D. (N.P.) 265. 

The sum demanded for a license to pursue an employment, if used 
as a means of supplying the public treasury, is held to be tax on suoh 
employment: Mays v. Cincinnati, 1 O. S. 268; Cincinnati v. Bryson, 
15 O. 625; Cincinnati v. Buckingham, 10 O. 257; State v. Proudfit, 3 O. 
63;,State v. Hibbard, 3 O. 63. 

A sum exacted for the privilege of practicing the profession of 
attorney was apparently regarded as a valid tax in State v. Hibbard, 

3 O. 63. 

In State v. Proudfit, 3 O. 63, the state was allowed to recover a 
sum charged upon the defendant for the privilege of practicing medi¬ 
cine. 

The city council of Cincinnati has power to license and regulate 
draymen; and may require a reasonable sum, by way of excise, on the 
special employment: Cincinnati v. Bryson, 15 O. 625. 

A charge of twenty-five cents per market day for occupying a 
place in the city market, or in a street nearto, with a wagon during 
market hours, was said to be the price demanded for accommodations 
provided to the frequenters of the market, by the city authorities: 
Cincinnati v. Buckingham, 10 O. 257. 

The fourth section of the act of March 31, 1864 (61 v, 110), “to 
organize and discipline the militia of Ohio,” which provides that “all 
persons subject to military duty, and who are not members of some 
volunteer organization, shall either become members of some volun¬ 
teer organization, or shall pay into the county treasury, annually, 
the sum of four dollars, which sum shall be a commutation for fines 
and penalties for neglect to perform military service,” etc., is not in 
conflict with this section. Such commutation is not a tax, but is only 
a means, or instrumentality, by which the general assembly enforces, 
to the extent deemed necessary, the performance of military duty 
enjoined by Art. IX, § 1: Houston v. Wright, 15 O. S. 318. 

A statute which requires a specific amount of labor upon public 
highways is valid (see G. C. § 3376): Dennis v. Simon, 51 O. S. 233. 

Where public money, in the custody of a public officer of this 
state, and with the disbursement of which money he is charged by 
law, is stolen or otherwise lost without his fault, and the legislature 
pass an act exonerating such officer and his sureties from the payment 
of such money, and direct that a tax be levied in the territory upon 
which the loss must fall to meet the deficit, such an act is not for¬ 
bidden by the constitution, state or federal: Board of Education v. 
McLandsborough, 36 O. S. 227. 

1 Debates, 513; 2 Debates, 34, 35, 119, 651, 723, 744-747, 755, 789, 793, 
818, 819, 831, 839-842, 851, 863, 870. 

Section 2. Laws shall be passed, taxing by a uniform rule, 
all moneys, credits, investments in bonds, stocks, joint stock com¬ 
panies, or otherwise ; and also all real and personal property 
according to its true value in money, excepting all bonds at 
present outstanding of the state of Ohio or of any city, village, 
hamlet, county, or township in this state or which have been 
issued in behalf of the public schools in Ohio and the means of 
instruction in connection therewith, which bonds so at present 
outstanding shall be exempt from taxation; but burying grounds, 
public school houses, houses used exclusively for public worship, 
institutions used exclusively for charitable purposes, public prop¬ 
erty used exclusively for any public purpose, and personal prop¬ 
erty, to an amount not exceeding in value five hundred dollars, 
for each individual, may, by general laws, be exempted from 
taxation; but all such laws shall be subject to alteration or 



CONSTITUTION OF THE STATE OF OHIO OF 1851 . 


Art.XII, § 


repeal; and the value of all property, so exempted, shall, from 
time to time, be ascertained and published as may be directed by 
law. (Amended September 3, 1912.) 

Vote; “Yes,” 269,039; “No,” 248,864. 

Section 2, as amended November 7, 1905, read as follows: “Sec. 2. 
[Taxation by uniform rule: exemption.] Laws shall be passed, taxing 
by a uniform rule, all moneys, credits, investments in bonds, stocks, 
joint stock companies, or otherwise; and also all real and personal 
property according to its true value in money, excepting bonds of 
the state of Ohio, bonds of any city, village hamlet, county, or township 
in this state, and bonds issued in behalf of the public schools of Ohio 
and the means of instruction in connection therewith, which bonds 
shall be exempt from taxation; but burying grounds, public school- 
houses, houses used exclusively for public worship, institutions of purely 
public charity, public property used exclusively for any public pur¬ 
pose, and personal property, to an amount not exceeding in value two 
hundred dollars, for each individual, may, by general laws, be exempted 
from taxation; but all such laws shall be subject to alteration or 
repeal; and the value of all property, so exempted, shall, from time 
to time, be ascertained and published, as may be directed by law. [As 
amended November 7, 1905; in effect January 1, 1906: 97 v. 652.]” 

The vote adopting this amendment was “Yes,” 655,508; “No,” 

139,062. 

Original § 2 read as follows: “Sec. 2. [Taxation by uniform rule.] 

I.aws shall be passed, taxing by a uniform rule, all moneys, credits, 
investments in bonds, stocks, joint stock companies, or otherwise; and 
also all real and personal property, according to its true value in 
money; but burying grounds, public schoolhouses, houses used exclu¬ 
sively for public worship, institutions of purely public charity, public 
property used exclusively for any public purpose, and personal property, 
to an amount not exceeding in value two hundred dollars, for each 
individual, may, by general laws, be exempted from taxation; but all 
such laws shall be subject to alteration or repeal; and the value of 
all property, so exempted, shall, from time to time, be ascertained and 
published, as may be directed by law.” 


I. Applied, cited, construed, re¬ 
ferred to, etc. 

II. Scope and effect. 

III. Source of power to tax. 

IV. What constitutes taxing. 

A. General revenue. 

II. License, franchise and 
excise taxes. 

C. Assessments. 

D. Water rents. 

E. Collection of taxes. 

V. I niform rule. 

A. Uniformity and equality. 

B. Specific illustrations. 

1. Banks. 

2. Inheritance tax. 

3. Telephone, telegraph 

and express compa¬ 
nies. 


4. Railways. 

5. Highways. 

6. Street improvement. 

VI. illoneys and credits. 

VII. Investments. 

VIII. Bonds and stocks. 

IX. Property. 

X. True value In money. 

XI. Exemptions. 

A. Property of municipal 

corporations. 

B. School property. 

C. Public worship. 

D. Institutions of purely 

public charity. 

E. General exemptions. 


I. APPLIED, CITED, CONSTRUED, REFERRED TO, ETC. 

McGill V. State, 34 O. S. 228; Cleveland v. Hei.sley, 41 O. S. 670; 
Marmet v. State, 45 O. S. 63; McNeill v. Hagerty, 51 O. S. 255; Bloom¬ 
field V. State, 86 O. S. 253; Goblet Co. v. Findlay, 5 O. C. C. 418, 3 O. C. D. 
205; Sherard v. Lindsay, 13 O. C. C. 315, 7 O. C. D. 245; Flatau v. Mans¬ 
field 14 O C C 592, 7 O. C. D. 39; Mitchell’s Administrator v. Commis¬ 
sioners, 5 O. N. P. 158, 5 O. D. (N.P.) 262; State, ex rel., v. Commis¬ 
sioners, 13 O. D. (N.P.) 97; Scott v. Smith, 2 O. N. P. (N.S.) 617, 15 O. D. 

(N.P.) 690; Watterson v. Halliday, 2 O. N. P. (N.S.) 693, 15 O. D. (N.P.) 
277’ Whitely v. Arbogast, 6 O. N. P. (N.S.) 313, 17 O. D. (N.P.) 569; 

State, ex rel., v. Kilgour, 8 O. N. P. (N.S.) 617, 19 O. D. (N.P.) 674; 

Sturges V. Carter, 114 U. S. 224, 5 O. F. D. 428; Insurance Co. v. Com¬ 
missioners, 99 Fed. 486, 13 O. F. D. 198. 


II. SCOPE AND EFFECT. 

It was at first held that the state could make a valid contract, 
limiting its power to tax: State v. Commercial Bank, 7 O. (pt. 1) 125. 

It was subsequently held that the power of taxation is a part of 
the legislative sovereignty of the state, and is not the subject of con¬ 
tract, of barter, or sale by the legislature; and if the legislature were 
to attempt to make such contract, it would be a fraud upon the govern- 



Art.XIl, § 2. 


266 j 

CONSTITUTION OP TUB STATE OF OHIO OP 1851 . 


merit, and of necessity void: Bank v. Debolt, 1 O. S. 591; see, to the 
same effect. Debolt v. Trust Co., 1 O. S. 563; Knoup v. Piqua Bank, 
1 O. S. 603; Toledo Bank v. Bond, 1 O. S. 622; Plank Road Co. v. Husted. 
3 O. S. 578; Bank v. Wilbor, 7 O. S. 481; Skelly v. Bank, 9 O. S. 606. 

The supreme court of the United States, however, held such con¬ 
tracts to be valid: Dodge v. Woolsey, 59 U. S. (18 How.) 331; Bank v. 
Debolt, 59 U. S. (18 How.) 380; Bank v. Thomas, 59 U. S. (18 How.) 
384; Piqua Bank v. Knoop, 57 U. S. (16 How.) 369. 

The supreme court of Ohio eventually yielded to the authority of 
the supreme court of the United States upon the specific statutory 
contracts for exemption, which had been considered by the supreme 
court of the United States: State, ex rel., v. Moore, 5 O. S. 444; Bank 
V. Lewis, 5 O. S. 447. 

This section does not tax property; it only provides that laws shall 
be passed taxing- all property, real and personal, by a uniform rule 
according to its true value in money. Neither does this section attempt 
to exempt property from taxation, but it defines what property may be 
exempted by general laws of the legislature: Martindill v. Sanger. 
8 O. N. P. 506, 11 O. D. (N.P.) 727. 

“It has been said: ‘In regard to taxation, equality is the great 
idea of the constitution. Inequality was the pre-existing evil; equality 
is the remedy.’ Bank v. Hines, 3 O. S. 1. But this idea was directed 
to property. The anxiety was, that no property should escape its 
proper and equal burthen. It is well known, that with difficulty any 
exemption, even of things regarded most sacred, was secured. Section 22, 
of Art. XII, and other sections of the same article, clearly show this 
anxiety. The things in contemplation were property of every possible 
description, and an equal and uniform tax upon that property, accord¬ 
ing to its true value in money. The exemptions to be allowed from 
that tax are specially enumerated. If there be a species of taxation, 
or a subject-matter for taxation, not embraced in that section, there is 
nothing in it by which they are prohibited or excluded. Laws, taxing- 
property must certainly conform with that section’’: Baker v. Cincin¬ 
nati, 11 O. S. 534. 

“Before the adoption of the present constitution the whole matter 
of taxation was committed to the discretion of the general assembly. 
It might be levied upon such property and in such proportion as that 
body saw fit. The right to make exceptions and exemptions was 
unquestionable. But this discretion no longer exists. The public 
burdens are made to’ rest upon the property of the state, and when¬ 
ever money is to be raised by taxation, the positive injunction is, 
that ‘laws shall be passed, taxing by a uniform rule, all moneys, 
credits, investments in bonds, stocks, joint stock companies, or other¬ 
wise; and also all real and personal property, according to its true 
value in money.’ Without express authority of law, no tax, either for 
state, county, township, or corporation purposes, can be levied; and 
we see no reason to doubt that this section of the constitution is 
equally applicable to, and furnishes the governing principle for, all 
laws authorizing taxes to be levied for either purpose. The great 
object of the provision was to secure equality and uniformity in the 
imposition of these public burdens. The convention was very well 
aware that much the largest part would be required to answer the 
purposes of these local subdivisions; and equally well that it could 
only be levied as the general assembly should provide. In establish¬ 
ing this principle of justice and equality, they have necessarily made 
it the fundamental rule upon which all such laws must be based; 
and its spirit and purpose can only be preserved by holding that it 
requires a uniform rate per cent, to be levied upon all property, 
according to its true value in money, within the limits of the local 
subdivision for which the revenue is collected; subject only to the 
exemptions specially provided for in this section”: Zanesville v. 
Richards, 5 O. S. 589. 

In construing the constitution, we must make it harmonize and 
give effect to all its provisions. In § 2, Art. XII, reference is made to 
general burdens imposed for the support of the government and the 
general benefit, while in § 6, Art. XIII, there is special benefit to be 
derived: Hill v. Higdon, 5 O. S. 243. 

Where taxation is spoken of in § 2, Art. XII, reference is made 
to the general burdens, imposed for the purpose of supporting the 
government, the revenue raised being expended for the equal benefit 
of the public at large: Hill v. Higdon, 5 O. S. 243. 

Section 2, Art. XII, of the state constitution, merely names the 
subjects of taxation, and makes no limitation as to their situs, or 
ownership: Worthington v. Sebastian, 25 O. S. 1. 

The provisions of this section, construed with other parts of the 
constitution, give rise to a clear and plain implication, that it was not 
the design of the framers of the constitution, or of the people in adopt¬ 
ing it, to withhold the power to provide such local or “Special laws as 
public necessities might require: McGill v. State, 34 O. S. 228. 

In a case involving the construction of the provisions of the acts 
relating to taxes for road purposes, it was said: “We need not deter- 




266k 


CONSTITUTION OP THE STATE OP OHIO OP 1851. 


mine whether the commissioners are required or permitted to expend 
any portion of the tax in Lima. They have exclusive power over the 
fund. . . . The people of the whole county are supposed to have an 

interest in the public highways. The particular condition of things 
which called for the imposition of the tax is unknown to us, but we 

are bound to assume it justified a levy on all the taxable property of 

the county; and we are not warranted in saying that it would be a 

violation of the constitution to tax the citizens of Lima, in common, 

with the people throughout the county, for the repair of roads on which 
the prosperity of the corporation may largely depend”: Lima v. 
McBride, 34 O. S. 338. 

This section does not prevent the legislature from obtaining gen¬ 
eral revenue from other sources than taxation on property: Alter v. 
Cincinnati, 56 O. S. 47. 

III. SOIRCE OF I'OWER TO TAX. 

The power of taxation is included in the legislative power. In 
our former constitution it is limited in one particular, the prohibi¬ 
tion of a poll tax. In the present, it is regulated or limited in other 
particulars. Section 2, of Art. XII, is not a grant of power, but a 
regulation of the power already granted in the first section of the 
second article. The expression is, ‘‘laws shall be passed,” not that the 
‘ general assembly shall have the power to pass.” So of every provis¬ 
ion in the twelfth article, they either prohibit or regulate the exercise 
of the power of taxation in specified instances: Baker v. Cincinnati, 11 
O. S. 534. 

The provisions of this article are not grants of power to the legis¬ 
lature, but limitations and restrictions on the general powers conferred 
by § 1, Art. II: Telegraph Co. v. Mayer, 28 O. S. 521. 

The power of taxation is limited, but not conferred by § 2, Art. XII, 
of the constitution. The limitation is on the power to raise revenue 
by the taxation of property; all other recognized modes may be 
resorted to by the legislature. The power of taxation is included in 

the legislative power conferred on the general assembly by § 1, Art. II, 

of the constitution: Adler v. Whitbeck, 44 O. S. 539. 

This section is not a grant of power, but a regulation or limita¬ 
tion rather, of the taxing power comprised in the general legislative 
power of the state vested in the general assembly: Anderson v. Brew¬ 
ster, 44 O. S. 576. 

That this section is a limitation and not a grant of power, see, 
also. Board of Education v. State, 51 O. S. 531. 

It was, however, said in Tafel v. Lewis, 75 O. S. 182, that the man¬ 

date of this section was a warrant for the taxation of property in 
this state. 

This section does not prevent the general assembly from compelling 
municipal corporations to levy taxes to install a sewage purification 
plant: Board of Health v. Greenville, 86 O. S. 1 [reversing Greenville v. 
Demorest, 14 O. C. C. (N.S.) 113]. 

Within constitutional limitations the remedy for any abuse in tax¬ 
ation is political and not judicial: Hulbert v. Roth, 11 O. N. P. (N.S.) 
397. 


IV'. WHAT COXSTITLTES TAXING. 

A. General revenue. The property of every person, however, ab¬ 
solute the tenure by which it is held, must be liable to bear an equal 
and just proportion of the public burdens, by way of taxation, in 
return f.or the protection and advantages afforded by the government, 
and that proportion of taxation must be determined by the legislative 
power, which extends to all persons and property within the state: 
Bank v. Bond, 1 O. S. 622. 

This section applies to all taxes for the purpose of general revenue 
whether for the state, the county, the township or municipal corpo¬ 
ration: Zanesville v. Richards, 5 O. S. 589; see, to the same effect. Hill 
\. Higdon, 5 O. S. 243; Reeves v. Treasurer, 8 O. S. 333; Baker v. Cin¬ 
cinnati, 11 O. S. 534; Gas Light Company v. State, 18 O. S. 237; State, 
e^ rel. v. Frame, 39 O. S. 399. 

This section is not intended to restrict the income of municipal 
corporations to the proceeds of general taxation; State, ex rel., v. 
Frame, 39 O. S. 399; Alter v. Cincinnati, 56 O. S. 47. 

A statute providing that county oflficials in certain counties, shall 
be paid specific compensation and with the excess of fees collected 
over and above such compensation should be paid into the county 
treasury, was not rendered invalid by this section: State, ex rel., v. 
Yates, 21 O. C. C. 686, 12 O. C. D. 298 [reversed, on other grounds, in 
State, ex rel., v. Yates, 66 O. S. 546]. 

Where public money in custody of a public officer of the state, 
and with the disbursement of which money he is charged by law, is 
stolen or otherwise lost without his fault, and the legislature pass an 


Art.XII, § 2. 



2661 


Art.XII, §2. CONSTITUTION OP THE STATE OP OHIO OP 1851. 


act exonerating such officer and his sureties from the payment of such 
money, and direct that a tax be levied in the territory upon which the 
loss must fall to meet the deficit, such act is not forbidden by the 
constitution: Board of Education v. McEandsborough, 36 O. S. 227. 

The legislature may compel a county to pay a legal obligation. 
Therefore, a claim having been established as a moral obligation of a 
county, the act requiring the county to pay it is not unconstitutional, 
as not levying taxes upon all the taxable property of the state: 
Insurance Co. v. Commissioners, 106 Fed. 123, 45 C. C. A. 233, 12 
O. F. D. 619 [affirmed, Insurance Co. v. Commissioners, 99 Fed. 846, 
13 O. F. D. 198]. 

B. lilcense, franchise, and excise taxes. The purpose of the Ohio 
constitution and statutes passed in pursuance thereof, is to tax by 
a uniform rule all property owned or held within the state; and a 
narrow construction of a statute, which will defeat this purpose, will 
not be adopted, where any other is possible. The tax which foreign 
insurance companies are required to pay in Ohio, is not a tax on prop¬ 
erty, but a tax for the privilege of doing business in the state: 
Scottish Union v. Bowland, 196 U. S. 611, 14 O. F. D. 543; Telegraph Co. 
V. Mayer, 23 O. S. 521. 

A license is not property and can not be taxed as such: Bank v. 
Hines, 3 O. S. 1; Baker v. Cincinnati, 11 O. S. 534; Gas Co. v. State, 18 
O. S. 237. 

Neither Art. XII, § 2, nor Art. XII, § 5, in terms, prohibits the 
granting of licenses and making a charge therefor, or the imposition 
of a tax on a license. The second requires the taxing of all property 
by a uniform rule: Baker v. Cincinnati, 11 O. S. 534. 

This section does not prevent the charge of a license fee for the 
exercise of special rights and privileges: Bank v. Hines, 3 0. S. 1; 
Baker v. Cincinnati, 11 O. S. 534; Gas Co. v. State, 18 O. S. 243. 

“We have several other law's imposing and authorizing charges on 
particular branches of business through the medium of licenses, which 
can be obtained only by paying for them; which laws are supposed to 
be in full force, and the validity of which, so far as I know, have 
never been questioned’’: Gas Light & Coke Co. v. State, 18 O. S. 237. 

This section does not render invalid a tax upon the business of 
dealine: in intoxicating liquors: State, ex rel., v. Frame, 39 O. S. 399; 
Anderson v. Brewster, 44 O. S. 576; Senior v. Ratterman, 44 O. S. 661. 

This section does not render invalid a statute which taxes cigar¬ 
ettes: Metz V. Hagerty, 51 O. S. 521. 

A per capita tax on dogs is not inhibited by the constitution. 
"Where the purpose of a statute, imposing such tax, is the protection of 
wool-growers, it is an exercise of the police poAver, and not the taxing 
power vested in the general assembly: Holst v. Roe, 39 O. S. 340. 

The general assembly has power (except as limited by § 18. of the 
schedule to the constitution) to regulate occupations by license, and 
to compel, by imposition of a fine, payment of a reasonable fee. where 
a special benefit is conferred by the public upon those who follow an 
occupation, or where it is injurious or dangerous to the public. Ac¬ 
cordingly, statutes which authorize municipal corporations to impose 
license fees upon livery stables, dealers in secondhand articles and 
upon theatres, are valid: Marmet v. State, 45 O. S. 63. 

A statute which charges a certain percentage of the capital stock 
of corporations which consolidate, is not rendered invalid by this sec¬ 
tion: Ashley V. Ryan. 49 O. S. 504 [affirmed in Ashley v. Ryan, 153 
U. S. 436, 8 O. F. D. 215]. 

A charge of a certain percentage of the capital stock of a corpora¬ 
tion, is a franchise tax and not a tax upon property, and is valid and 
constitutional: Southern Gum Co. v. Laylin. 66 O. S. 578. 

Under this section, G. C. § 5449 was held to be unconstitutional in 
Express Co. v. Poe, 61 Fed. 470, 8 O. F. D. 184. 

The powder to impose taxes is a legislative power, and is vested 
in the general assembly by § 1. of Art. II, of the constitution: State, 
ex rel., v. Guilbert, 70 O. S. 229. 

This section is a limitation upon the taxing power, so far as the 
same applies to taxation of property, both as to the method of taxa¬ 
tion and the character and amount of property which may be lawfully 
exempted from taxation, and furnishes the governing principle for ail 
laws authorizing taxes for general revenue on property. But this 
section has no application to taxes known as excise taxes: State, 
ex rel., v. Guilbert, 70 O. S. 229. 

The act of April 25, 1904, entitled. “An act to impose a tax upon 
the right to succeed or inherit property,” being a tax not upon prop¬ 
erty, but upon the right to inherit or succeed to property; the power 
to enact the same is not affected by the limitations of this section of 
the constitution: State, ex rel., v. Guilbert, 70 O. S. 229. 

An ordinance which imposes a license fee of $300 on temporary 
stores and transient dealers is invalid, because prohibitive as to some 



Art.XII, 


267 

CONSTITUTION OF THE STATE OF OHIO OF 1851. 


classes, unreasonable as to others, and in restraint of trade: Uhrlaub 
V. Cincinnati, 8 O. C. C. (N.S.) 505, 18 O. C. D. 797 [affirmed, without 
report, Cincinnati v. Uhrlaub, 72 O. S. 667], 

A charge upon gas companies in the state for the purpose of pay¬ 
ing the expense of an inspector of gas meters, was held to be valid 
and constitutional: Gas Light & Coke Co. v. State, 18 O. S. 237. 

Although the assessment or charge upon gas companies of the 
state, imposed by the statute in question may be a tax, in the widest 
import of the word, it certainly is not a tax for purposes of general 
revenue. The charge or assessment here is not a tax on property, but 
rather a charge upon individual corporations; and the business in 
which they are engaged. And it by no means follows, that because 
the state is compelled to tax all property by a uniform rule, that it is 
therefore cut off from all power to lay assessments and charges for 
exceptional and special purposes, coming clearly within the general 
legislative power conferred by the constitution upon the general assem¬ 
bly: Gas Light & Coke Co. v. State, 18 O. S. 237. 

The act of April 23, 1894 (91 O. L. 173), to prevent and punish 
fraud in sales of wearing apparel, at public or private sale, by itinerant 
vendors, and to regulate all such sales, is not rendered unconstitu¬ 
tional by this section: Ex parte Hosier, 4 O. C, D, 82. 

C. Assessments. An assessment levied for local improvements 
upon land benefited thereby and in proportion to the special benefits 
conferred upon such land by such improvement, is not a tax, within 
the meaning of this section and is not rendered invalid thereby: 
Zanesville v. Richards, 5 O. S. 589; Reeves v. Treasurer, 8 O. S. 333; 
Thompson v. Treasurer, 11 O. S. 678; Sessions v. Crunkilton, 20 O. S. 
349; Chamberlain v. Cleveland, 34 O. S. 551; Lima v. Cemetery Asso¬ 
ciation, 42 O. S. 128. 

Section 2, of Art. XII, has established the principles upon which all 
taxes for general revenue purposes must be levied; but it does not 
extend to what was then, and is still, well known as special assess¬ 
ments, because § 6, of Art. XIII, shows that they were not intended to 
be included: Hill v. Higdon, 5 O. S. 243. 

A law taxing only property within one-half mile of a proposed 
road improvement, is valid: Carlisle v. Hetherington, 47 O. S. 235; 
State, ex rel., v. Commissioners, 17 O. S. 558. 

D. Water rents. Water rents are not taxes on property within 
the meaning of this article: Alter v. Cincinnati, 56 O. S. 47. 

E. Collection of taxes. The power of taxation, included In the leg¬ 
islative power vested in the general assembly by Art. H, § 1, of the 
constitution, is indeed wisely regulated and limited by that instru¬ 
ment: but we may ask, what avails the power of taxation, if there is 
no commensurate power to collect taxes and assessments when im¬ 
posed: Anderson v. Brewster, 44 O. S. 576. 

A statute which is simply designed to compel all to contribute 
proportionately to the support of the common government is not 
invalid under this provision: Musser v. Adair, 55 O. S. 466. 

This section does not render invalid a law which provides for the 
employment of a tax inquisitor: McGoldrick v. Lewis, 12 O. D. (N.P.) 46. 

CM FORM RULE. 

A. Cniformity and equality. A statute on the subject of taxation 
must be construed, if possible, so as to avoid inequality: Zanesville v. 
Richards, 5 O. S. 589. 

This section forbids exemptions of property not authorized by the 
constitution: Zanesville v. Richards, 5 O. S. 589. 

A statute w'hich authorizes persons engaged in certain kinds of 
business to deduct credits, but does not permit such deduction to be 
made by others, is unconstitutional: Bank v. Hines, 3 O. S. 1; Latimer 
V. Morgan, 6 O. S. 279. 

The property of every person, however, absolute the tenure by 
which it is held, must be liable to bear an equal and just proportion 
of the public burdens, by way of taxation. In return for the protec¬ 
tion and advantages afforded by the government, and that proportion 
of taxation, must be determined by the legislative power, which 
extends to all persons and property within the state: Bank v. Toledo, 
1 O. S. 622. 

The fact that property subject to taxation has not been listed, 
although it improperly increases the burden of taxation on the property 
that is listed, does not render the tax wholly void, or authorize the 
interference of a court of equity: Bank v. Hines, 3 O. S. 1. 

The rule or principle, of inequal valuation of different classes of 
property for taxation, adopted by local boards of assessment, is in 
conflict with the constitution of Ohio, and works manifest injustice to 
the owners of bank shares: Bank v. Hines, 3 O. S. 1. 




268 


Art.XII, §2. CONSTITUTION OF THE STATE OP OHIO OF 1851. 


An express direction to impose a tax on all property by a uniform 
rule, does not necessarily exclude taxation upon that which is not 
property, or cover the whole ground included within the limits of the 
taxing power: Zanesville v. Richards, 5 O. S. 589; Gas Light & Coke 
Co. V. State, 18 O. S. 237. 

Section 3, of the act of April 6, 1866, “for the inspection of gas 
meters,” etc. (63 v. 164), providing that the salary of the inspector 
of gas meters and illuminating gas shall be paid by the several gas 
light companies in this state, in amounts proportionate to their 
appraised valuation, is not in conflict with this section: Gas Light 
& Coke Co. V. State, 18 O. S. 237. 

The act of April 6, 1866, “to provide for the valuation of lands 
in new town plats, or additions thereto” (S. & S. 762), applies to cases 
where lands within the corporate limits of a city or town are laid 
out into lots, streets, etc., as well as to cases where the lands so laid 
out are situate without the corporate limits. This act is not in con¬ 
flict with the provisions of § 2, Art. XII, of the constitution: Mitchell 
&. Watson V. Treasurer, 25 O. S. 143. 

Statutory provisions whereby different classes of property are 
listed and valued for taxation in and by different modes and agencies, 
are not necessarily in conflict with this section: Wagoner v. Loomis, 
37 O. S. 571. 

The levying of a tax to refund assessments, as provided in G. C. 
§ 9267, et seq., is a constitutional exercise of the taxing power: Warder 
V. Commissioners, 38 O. S. 639. 

General Code § 5379, which requires dogs to be listed for taxation, 
is a valid exercise of the taxing power: Holst v. Roe, 39 O. S. 340. 

This section does not render invalid the levy of a tax upon the 
property of a county, for the purpose of paying the compensation of 
officials in such county: Holtz v. Commissioners, 41 O. S. 423. 

The method provided in subdivision 16, of G. C. § 5376, for estima¬ 
ting the taxable value of property converted during the year into 
nontaxable securities, is not in conflict with § 2, of Art. XII, of the con¬ 
stitution, which requires that laws shall be passed, taxing all property 
by a uniform rule, according to its true value in money: Shotwell v. 
Moore, 45 O. S. 632. 

An act (88 v. 353; act of April 23, 1891) which authorizes any 
county to raise money by taxation to secure the location of the Ohio 
agricultural experiment station, is void: Wasson v. Commissioners, 
49 O. S. 622. 

An act whereby the auditor receives a fee of four per cent, for cor¬ 
recting a false return, does not disqualify him from acting in the case, 
and is a legitimate way of securing uniformity of taxation: Probasco 
V. Raine, 50 O. S. 378. 

Under former statutes it was said that an assessment in excess 
of the cost of the improvement, imposed a burden not warranted by 
law and opposed to the system of taxation provided in the constitu¬ 
tion: Groesbeck v. Cincinnati, 51 O. S. 365. 

Although a special taxing district may be created, yet an act pro¬ 
viding higher education in counties containing cities of the first grade, 
of the first class, and making provision for different tax levies within 
the district is void: Root v. Board of Education, 52 O. S. 589. 

The erection of an armory for the use of the national guard is a 
general purpose of the state, and taxes for this purpose must be levied 
according to this section: Hubbard v. Fitzsimmons, 57 O. S. 436; see, 
also. State, ex rel., v. Kreighbaum, 9 O. C. C. 619, 6 O. C. D. 654 [affirmed, 
without report. State, ex rel., v. Commissioners, 54 O. S. 615]. 

This section does not render invalid a statute which authorizes 
licensing transient traders under municipal corporations; although such 
statute is rendered invalid in Art. I, § 1, and Art. I, § 2: Flatau v. 
Mansfield, 14 O. C. C. 592, 7 O. C. D. 39. 

This section does not render invalid a statute which makes a county 
liable for mob violence: Commissioners v. Church, 62 O. S. 318 [affirm¬ 
ing Mitchell V. Commissioners, 10 O. C. D. 801, which reversed Mitchell 
V. Commissioners, 5 O. N. P. 158, 5 O. D. (N.P.) 262, and reversing Cald¬ 
well V. Commissioners, 15 O. C. C. 167, 8 O. C. D. 56, which affirmed 
Caldwell v. Commissioners, 4 O. N. P. 249, 6 O. D. (N.P.) 367]. 

Taxation laws do not attempt to arrive at exact equality, nor to 
provide that equivalents shall be of exactly the same value. A sub¬ 
stantial equality is all that they attempt to reach: Trust Company v 
Lander, 10 O. C. D. 452. 

A law which imposes the burden of taxation upon teachers as a 
class of citizens for the purposes of a teachers’ pension fund, is not 
taxing by a uniform rule, as required by § 2, Art. XII, of the consti¬ 
tution. Therefore, the act (92 O. L. 685) constitutes a taking of prop¬ 
erty without due process of law: State v. Hubbard, 22 O. C. C. 252, 
12 O. C. D. 87 [affirmed, without report, Hibbard v. State, 65 O. S. 574]; 
see, to same effect, Venable v. Schafer, 7 O. C. C. (N.S.) 337, 18 O C d’ 
202 . 



269 

CONSTITUTION OF THE STATE OF OHIO OF 1851. 


An owner of a building, which he himself has torn down, is entitled 
under G. C. § 2591, to have the county auditor deduct from the tax 
duplicate the value of such building at any time between the second 
day of April and the first day of October, as provided in the statute. 
This statute does not violate the provisions of § 2, Art. XII, consti¬ 
tution, as to uniformity of rates of taxation: State, ex rel., v. Wright 8 
O. C. C. (N.S.) 366, 18 O. C. D. 697. 

This section requires the property of corporations to be taxed as 
is other property: Creech v. Railroad, 2 O. N. P. 164, 3 0 D (N P ) 
265. 

The presumption is that all personal property is taxed by a uni¬ 
form rule in compliance with this constitutional provision: Huddle¬ 
ston V. Haggerty, 2 O. N. P. 291, 1' O. D. (N.P.) 331. 

Gross inequality is a relative term. It has no fixed meaning but 
varies with varying circumstances. Small additions or small reduc¬ 
tions of tax values may become necessary by reason of gross inequality, 
when compared to other pieces of property, as well as to numerous 
other conditions which must be taken into consideration by the re¬ 
viewing boards: Ludlow v. Lewis, 6 O. N. P. 513, 9 O. D. (N.P.) 600. 

The appropriate mode of relief in such cases is, upon payment of 
the amount of tax which is equal to that assessed on other property, to 
enjoin the collection of the illegal excess (Waite, C. J., dissenting): 
Cummings v. Bank, 101 U. S. 153, 4 O. F. D. 578. 

When a rule of valuation is adopted which is intended to operate 
unequally, and is applied, not solely to one individual, but to a large 
class of individuals or corporations, equity will interfere to restrain 
the operation of the unconstitutional exercise of power: Cummings 
V. Bank, 101 U. S. 153, 4 O. F. D. 578. 

The rule, or principle, of unequal valuation of different classes 
of property for taxation, adopted by local boards of assessment, is in 
conflict with the constitution of Ohio, and works manifest injustice 
to the owners of bank shares: Bank v. Hines, 3 O. S. 1 [approved and 
followed, Cummings v. Bank, 101 U. S. 153, 4 O. F. D. 578], 

The decision in the case of the Exchange Bank of Columbus v. 
Hines, Treasurer, 3 O. S. 1, giving a construction to the second and 
third sections of Art. XII, of constitution, and declaring unconstitu¬ 
tional and void the tenth section of the tax law of April 13, 1852, was 
approved and followed in Latimer v. Morgan, 6 O. S. 279. 

The purpose of the Ohio constitution and statutes passed in pur¬ 
suance thereof, as frequently declared by the supreme court, is to tax 
by a uniform rule all property owned or held within the state; and a 
narrow construction of a statute, which will defeat this purpose, will 
not be adopted where any other is possible: Insurance Co. v. Bowland, 
196 U. S. 611, 14 O. F. D. 543. 

A statute which exempts property not authorized by the consti¬ 
tution to be exempt from taxation, is invalid by reason of this section: 
Zanesville v. Richards, 5 O. S. 590; Hynicka v. Insurance Co., 17 O. D. 
(N.P.) 80. 

The legislature of Ohio having passed laws providing for separate 
state boards of equalization, for real estate, for railroads and for bank 
shares, but not providing a board to equalize personal property, includ¬ 
ing all other money capital, the equalization of which is left with the 
county boards, the statvite creating the boards for equalizing bank 
stock, is not void as a violation of the constitution of Ohio, declaring 
that laws shall be passed for taxing all property by a uniform rule, 
according to its true value in money: Cummings v. Bank, 101 U. S. 
153, 4 O. F. D. 578. 

Sections 5599 and 5600, G. C., providing for city decennial boards 
of revision, are not invalid because in violation of § 26, Art. II; of § 2, 
Art. XII; Art. XIII, of the constitution. The revision of taxes therein 
provided for dates back to the original assessment and the rule of 
uniformity of taxation is not violated, because in certain populous 
districts the agents of the state, for the purpose of revision, are more 
numerous, and the time in which to perform their duties is longer 
than in smaller districts. Nor is the appointment of, or the function 
performed by these agents the exercise of corporate power: Scarbor¬ 
ough V. Gibson, 1 O. N. P. (N.S.) 77, 13 O. D. (N.P.) 738. 

A statute which provides for a board of equalization in a city of 
the second grade, of the first class, with power substantially different 
from those possessed by like boards in other cities, is invalid as being 
a violation of Art. II, § 26, of the Ohio constitution: Gaylor v. Hubbard, 
56 O. S. 25 [reversing Gaylord v. Hubbard, 12 O. C. C. 112, 5 O. C. D. 529. 


B. Specific illustrations. 

1. Banks. A statute which authorizes bankers to make deductions 
of their debts, which other persons are not authorized to make, is 
unconstitutional: Bank v. Hines, 3 O. S. 1; Ellis v. Linck, 3 O. S. 66; 
Latimer v. Morgan, 6 O. S. 280. 


Art.XII, § 2. 




270 


Art.XII, § 2. 


CONSTITUTION OF THE STATE OF OHIO OF 1851. 


The state has power to tax shares in the national banks located 
in Ohio, subject to the limitations that such tax shall not exceed the 
rate imposed upon other moneyed capital of individuals, nor that 
imposed upon shares in the state banks, as provided in the act of 
congress of June 3, 1864: Frazer v. Siebern, 16 O. S. 614. 

An act which provides in the return for taxation of unincorporated 
banks and bankers, that the aggregate sum of the first five items 
therein enumerated, the county auditor shall deduct the aggregate 
sum of the fifth, sixth, seventh and such portions of the eighth as are 
exempt, is valid, except to the extent of including the entire third 
item, among those from which the deduction is to be made: Treasurer 
v. Bank, 47 O. S. 503. 

A law compelling the return and taxation of savings by depositors 

in savings banks is valid: Collett v. Savings Society, 13 O. C. C. 131, 

7 O. C. D. 146 [affirmed, without report, Collett v. Savings Society, 56 
O. S. 776]. 

There is no constitutional requirement that property employed by 
bankers, of different classes, should be taxed by a uniform rule, except 
that each must conform to the same standard, and that standard is 
“the burden of taxation imposed upon the property of individuals”: 
Patton V. Bank, 7 O. N. P. 401, 10 O. D. (N.P.) 321. 

For the validity of a tax law applicable to bhnks and changing 
the rate of taxation from that fixed by their charters, see Woolsey 
V. Dodge, 6 McLean, 142, Fed. Cas. 18032, 3 O. F. D. 228. 

It was at first held that the state could make a valid contract, 

limiting its power to tax: State v. Commercial Bank, 7 O. (pt. 1) 125, 

It was subsequently held that the power of taxation is a part of 
the legislative sovereignty of the state, and is not the subject of 
contract, of barter, or sale by the legislature; and if the legislature 
were to attempt to make such contract, it would be a fraud upon the 
government, and of necessity void: Bank v. Debolt, 1 O. S. 591; see, 

to the same effect. Debolt v. Trust Co., 1 O. S. 563; Knoup v. Piqua 

Bank, 1 O. S. 603; Toledo Bank v. Bond, 1 O. S. 622; Plank Road Co. 

V. Husted, 3 O. S. 578; Bank v. Wilbor, 7 O. S. 481; Skelly v. Bank, 

9 O. S. 606. 

The supreme court of the United States, however, held such con¬ 
tracts to be valid: Dodge v. Woolsey, 59 U. S. (18 How.) 331; Bank 
V. Debolt, 59 U. S. (18 How.) 380; Bank v. Thomas, 59 U. S. (18 How.) 
384; Piqua Bank v. Knoop, 57 U. S. (16 How.) 369. 

The supreme court of Ohio eventually yielded to the authority of 
the supreme court of the United Stages, upon the specific statutory 
contracts for exemption, which had been considered by the supreme 
court of the United States: State, ex rel., v. Moore, 5 O. S. 444; Bank 
V. Lewis, 5 O. S. 44 7. 

2. Inheritance tax. An inheritance tax which applies only to 
estates exceeding twenty thousand dollars, and which imposes a 
higher rate of taxation upon large estates than is imposed upon small 
estates, is unconstitutional, but apparently not by reason of this 
section, but rather by reason of Art. I, § 2, of the Ohio constitution; 
State, ex rel., v. Ferris, 53 O. S. 314 [affirming State, ex rel., v. Ferris, 
9 O. C. C. 298, 6 O. C. D. 158]. 

That an inheritance tax is not invalidated by this section, see 
State, ex rel., v. Guilbert, 70 O. S. 229; Executors v. State, 72 O. S. 448; 
see, also, Friend v. Levy, 76 O. S. 26; Chamberlain v. Stecher, 78 O. S. 
271. 

Telephone, telegraph and express companies. A law requiring 
express, telegraph and telephone companies to return certain property 
for taxation is valid, and does not contravene this section: State, 
ex rel., v. Jones, 51 O. S. 492. 

“The general grant of legislative power vested in the general 
assembly by Art. H, § 1, of the constitution, includes the power to 
collect revenue for public purposes, and the limitations on the exercise 
of this power are to be found in other provisions of that instrument 
and in the constitution of the United States. The provisions of Art. 
XII, of the constitution of Ohio, are not grants of power to the legis¬ 
lature, but limitations and restrictions on the general powers con¬ 
ferred by Art. II, § 1, and, among other things, i 2, of Art. XH, requires 
that all property subject to taxation shall be taxed by a uniform rule, 
and according to its true value in money. The privilege that a foreign 
corporation enjoys by legislative consent of exercising its corporate 
powers, and of carrying on its business within the state, is not prop¬ 
erty within the meaning of Art. XH, § 2, of this constitution. The 
provisions of ‘an act for the assessment and taxation of express and 
telegraph companies’ (S. & S. 769-771), as amended, which requires 
a foreign telegraph company to pay a tax on its gross receipts for the 
year next preceding the return for assessment, at a rate equal to that 
on property, and prohibits any person from acting as agent, or trans¬ 
acting any business for such company that is in default of payment, 




271 


CONSTITUTION OF THE STATE OP OHIO OP 1851. Art.XII, §2. 


are, in effect, a charge for the privilege of exercising its franchises 
and powers within the state, graduated according to the amount of 
receipts, not in conflict with any of the limitations on the power of 
taxation vested in the general assembly”: Telegraph Co. v. Mayer, 
28 O. S. 521. 

This statute was held constitutional by the supreme court of the 
United States: Express Co. v. Auditor, 165 U. S. 194, 10 O. F, D. 655, 
166 U. S. 185, 10 O. F. T>. 426; Sanford v. Poe, 61 Fed. 449, 8 O. F. D. 
158, 64 Fed. 9, 8 O. F. D. 335, 69 Fed. 546, 16 C. C. A. 683, 9 O. F. D. 50. 

4. Railways. An act requiring a railroad company or part of 
railroad, within the state, to pay a license fee of $1.00 for each mile 
operated is void: Railway v. State, 49 O. S. 189. 

5. Higliways. We need not determine whether the commissioners 
are required or permitted to expend any portion of the tax in Lima. 
They have exclusive power over the fund, and it is “to be expended 
under their directions, in such manner as may seem to them most 
advantageous to the interest of any such county, for the construction, 
reconstruction or repair of any such road or roads,” 66 v. 60. The 
people of the whole county are supposed to have an interest in the 
public highways. The particular condition of things which called for 
the imposition of the tax is unknown to us, but we are bound to 
assume it justifled a levy on all the taxable property of the county; 
and we are not warranted in saying that it would be a violation of 
the constitution to tax the citizens of Lima, in common with the people 
throughout the county, for the repair of roads on which the prosperity 
of the corporation may largely depend: Lima v. McBride, 34 O. S. 338. 

Act of March 29, 1879, “to authorize the commissioners of certain 
counties to locate and construct turnpike roads,” which exempts 
certain lands therein named from taxation for the improvements 
therein provided for, is in conflict w'ith § 2, Art. XTI, of the consti¬ 
tution, and is therefore void: Fields v. Commissioners, 36 O. S. 476. 

In levying a tax for the construction of a road, all property within 
the taxing district must be taxed by a uniform rule, according to its 
true value in money: Bowles v. State, 37 O. S. 35. 

The act of May 16, 1894, entitled, “An act to authorize the county 
commissioners to provide for the construction, improvement and repair 
of public highways (91 v. 759), is unconstitutional in this, that its 
subject-matter is general, while its operation and effect are local. By 
§ 2, Art. XII, the power to pass special laws as to the taxation of 
property is taken away: Hixson v. Burson, 54 O. S. 470. 

A statute which authorized and required the commissioners of a 
certain county to construct a turnpike road under the provision of the 
one-mile assessment pike statute, and provided that thirty per cent, of 
the cost of the improvement should be assessed upon the property 
within one mile of said road, and seventy per cent, of the cost of the 
improvement should be levied upon all the taxable property of the 
county, was held to be unconstitutional as in conflict with this section: 
Bryan v. Commissioners, 1 O. D. (N.P.) 661. 

«. Street Improvement. Where a village which has issued bonds 
for street improvements is annexed to a city; and the city, for the 
paymenj; of the bonds, levies a tax on the territory only which was 
formerly embraced by the village, such an act is not in conflict with 
Art. XII, of the constitution: Cleveland v. Heisley, 41 O. S. 670. 

VI. MONEYS AND CREDITS. 

That clause of G. C. § 7843 which requires all credits payable in 
money to be listed for taxation at their face value, being repugnant to 
this section, is void: McCurdy v. Prugh, 59 O. S. 465, 

Under this section liabilities can not be deducted from moneys 
and credits: Bank v. Hines, 3 O. S. 1. 

Revised Statutes § 2759 was unconstitutional only to the extent of 
the items set forth therein from which debts might be deducted: 
Treasurer v. Bank, 47 O. S. 503. 

To the extent that R. S. § 2759 (repealed, 97 v. 280, § 2), relating 
to banks, permits cash and cash items in possession to be included in 
the aggregate from which deductions of debts are to be made, it is 
repugnant to the constitution and void. The deflnition of money, as 
given in G. C. § 5326 in the title on taxation, that it means “any 
surplus or undivided profits held by the societies for savings, or banks 
having no capital stock, gold and silver coin or bank notes of solvent 
banks in actual possession, and every deposit which the person own¬ 
ing, holding in trust or having the beneficial interest therein, is 
entitled to withdraw on demand, applies to banks as well as indi¬ 
viduals; under § 2, Art. XII, of the constitution, what is money if the 
property of an individual, for the purpose of taxation is and must be 
money if the property of a bank: Patton v. Bank, 7 O. N. P. 401, 10 
O. D. (N.P.) 321. 



272 


Art.XII, §2. CONSTITUTION OF THE STATE OP OHIO OP 1851. 


That debts can not be deducted from shares of stock in a national 
bank, see Chapman v. Bank, 56 O. S. 310; see, also, Niles v. Shaw, 50 
O. S. 370. 

Under the present form of this section, by which bonds of munic¬ 
ipal corporations of Ohio are exempt from taxation, it is not necessary, 
under G. C. § 5376, to list the monthly average amount or value of 
moneys or credits invested in or converted into bonds of any munic¬ 
ipality of this state: Whitely v. Arbogast, 9 O. C. C. (N.S.) 584, 19 
O. C. D. 595 [appeal from Whitely v. Arbogast, 6 O. N. P. (N.S.) 313, 
17 O. D. (N.P.) 569]. 

VII. INVESTMENTS. 

A gift of income, or a certain amount payable annually out of the 
income, the principal fund being taxed, is not an investment so that 
such gift should be capitalized and taxed in addition to taxes levied 
upon the principal: Chisholm v. Shields, 67 O. S. 374. 

AIII. BONDS AND STOCKS. 

Bonds and stocks of the state may be taxed if not expressly 
exempted: Bank v. Smith, 7 O. S. 42. 

The provisions of the act of May 11, 1878 (75 v. 436; see G. C. 
§ 5322, et seq.), by which an owner of stock in a foreign corporation 
is required to list the same for taxation, notwithstanding the capital 
of the corporation is taxed in the state where the corporation is 
located, are not in conflict with the constitution: Bradley v. Bauder, 
36 O. S. 28. 

Bonds which are deposited by a foreign insurance company in 
order to do business in this state (see G. C. § 9565), are taxable. The 
state has power to tax property within its boundaries, irrespective of 
the domicile of the owner: Assurance Co. v. Hallidav, 126 Fed. 257, 
61 C. C. A. 271, 14 O. F. D. 73, 1 O. L. R. 643 [affirming Assurance Co. 
V. Halliday, 110 Fed. 259, 13 O. F. D. 682]. 

Under the present form of this section, which exempts municipal 
bonds from taxation, it is not necessary to list the average amount of 
money or credit invested in municipal bonds: Whitely v. Arbogast, 
9 O. C. C. (N.S.) 584, 19 O. C. D. 595 [appeal from Whitely v. Arbogast, 
6 O. N. P. (N.S.) 313, 17 O. D. (N.P.) 569]. 

IX. PROPERTY. 

The object of the language of the constitution under consideration 
was comprehension, not exclusion. The words, “all real and personal 
property,” therefore, in § 2, are to be taken in their most comprehen¬ 
sive legal import, including every kind of real and personal whatso¬ 
ever, not excepting the several classes of personal property expressly 
mentioned in the first clause of the section: Bank v. Hines, 3 O. S. 1. 

The shares in national banks thus to be taxed, are to be under¬ 
stood as the individual property or choses of the stockholders, as con¬ 
tradistinguished from aliquot parts of the capital and property of the 
bank, and, as such, may be taxed at their full value, without deduc¬ 
tion for the franchise, for real estate otherwise taxed, or for untax- 
able bonds owned by the bank: Frazer v. Siebern, 16 O. S. 6J4. 

Investments in bonds and stocks of foreign corporations by resi- 
diits of Ohio may lawfully be taxed in Ohio; and the provisions of 
the act of April 5, 1859 (2 S. & C. 1438), imposing a tax on such bonds 
and stocks are not in violation of this section: Worthington v. 
Sebastian, 25 O. S. 1. 

The privilege that a foreign corporation enjoys, by legislative 
consent, of exercising its corporate powers, and of carrying on its 
business within the state, is not property within the meaning of this 
section: Telegraph Co. v. Mayer, 28 O. S. 521. 

An owner, residing in Ohio, of shares of stock in a foreign cor¬ 
poration, is required to list the same for taxation, notwithstanding 
the capital of the corporation is taxed in the state where the corpo¬ 
ration is located (see G. C. § 5324 and G. C. § 5328). The provisions of 
said statute, subjecting such shares of stock so owned to taxation in 
this state, are not in conflict with the constitution: Bradley v. Bauder, 
36 O. S. 28. 

Shares of stock in a foreign corporation are taxable, although the 
corporation is taxed in the state where located, and although the cor¬ 
poration has substantial property in Ohio on which it pays taxes here; 
nor does it apply to shares of a railroad company which is formed by 
the consolidation of an Ohio company with companies of other states, 
notwithstanding such company pays taxes in Ohio on the portion of its 
property which is situated here: Lee v. Sturges, 46 O. S. 153. 

Personal property in the possession of an assignee for the benefit 
of creditors of a manufacturing corporation, which is not being reduced 
to money for distribution among the creditors of the corporation, but 
is being held and operated under the orders of the insolvency court. 



273 


CONSTITUTION OP THE STATE OF OHIO OP 1851. 


and at the joint request of the creditors of the assignee, in the con¬ 
duct of a going business, such business being conducted as it had been 
heretofore by the corporation itself, is subject to taxation, and it is 
the duty of the assignee to list such property for taxation: French 
V. Bobe, 64 O. S. 323. 

If a corporation has accumulated a surplus and certificates therefor 
are issued to the stockholders, such certificates are not property within 
the meaning of this constitutional provision or of the statutes of 
Ohio: Adams v. Shields, 5 O. N. P. 190, 7 O. D. (N.P.) 193. 

General Code § 5372, which exempts from further taxation shares 
of capital stock of any corporation, the capital stock of which is taxed 
in this state in the name of the company, will not operate to exempt 
shares of stock owned by citizens of this state in a corporation which 
is not required to return its capital for taxation here by reason of its 
nonresidence: Scott v. Smith, 2 O. N. P. (N.S.) 617, 15 O. D. (N.P.) 590. 

The capital of a corporation, consisting wholly of patent rights 
issued by the government of the United States, is, by federal authority, 
exempt from taxation under the taxing power of the state; but shares 
of the capital stock of such corporation are not exempted by such 
federal authority, and are subject to the taxing power of the state. 
In Ohio, shares of stock held by a resident of the state of Ohio in a 
foreign corporation, doing business wholly without the state, whose 
capital is wholly patent rights, are not exempt from taxation either 
by federal authority or under G. C. § 183, et seq., and G. C. § 5372, and 
must be returned for taxation: Scott v. Smith, 2 O. N. P. (N.S.) 617, 
15 O. D. (N.P.) 590. 

A license is not “property” within the meaning of this section, 
although a charge may be made therefor: Bank v. Hines, 3 O. S. 1; 
Baker v. Cincinnati, 11 O. S. 534; Gas Light Co. v. State, 18 O. S. 237. 

X. TRUE VALUE IN MONEY. 

Choses in action are to be listed at their true value. If a note, 
for instance, is wholly worthless, it is not to be listed at ali if ii i.s 
of some value, but less than its face, it is to be listed at what it is 
worth: Bank v. Hines, 3 O. S. 1. 

The constitution permits no deduction of liabilities from moneys 
and credits: Bank v. Hines, 3 O. S. 1. 

Every citizen is to be taxed upon his property without deduction 
or exemption, except as provided in Art. XII, §2, of the constitution: 
Ellis V. Linck, 3 O. S. 66. 

This provision is not violated by adding the penalty for a false 
return to the value and entering the whole on the tax lists instead of 
adding the penalty to the tax itself: Gager v. Prout, 48 O. S. 89. 

Promissory notes, book accounts and other credits are property 
and fall within that provision of § 2, Art. XII, of the constitution of 
this state, which declares that “all real and personal property” shall 
be taxed according to its true value in money. Where property has 
been valued for taxation and taxed at its true value in money, it is no 
defense against the payment of such tax that all other property within 
the state, through the mistake or imperfect judgment of the taxing 
officers and equalizing boards, has been valued for taxation materially 
below its true value in money: McCurdy v. Prugh, 59 O. S. 465. 

Where the manufacture of an article of tangible personal prop¬ 
erty is protected by a patent, and such article when manufactured is 
not put on the market for sale, but its ownership retained by the 
manufacturer in himself, and the article leased or rented by him tc 
another for a valuable consideration, payable to him, it should be 
taxed as his property at “its true value in money,” although that value 
is enhanced by reason of the patent. Its true value in money for 
taxation is the value that attaches to it in his hands. Earnings or 
rental value of such article is one of the circumstances to be taken into 
consideration in ascertaining the true value in money: State, ex rel., 
V. Halliday, 61 O. S. 352. 

Our state constitution makes it mandatory upon the lawmaking 
power that “laws shall be passed taxing by a uniform rule all moneys, 
credits, investments in bonds, stocks, joint stock companies or other¬ 
wise;” and also all real and personal property, according to its true 
value in money. Article XII, § 2, and Art. XIII, § 4, specifically subject 
“the property of corporations to taxation as other property is taxed”: 
Creech v. Railroad, 2 O. N. P. 164, 3 O. D. (N.P.) 265. 

As far as the constitution is involved, exact equality of burden is 
imposed upon all taxable property, whether owned by banks or bank¬ 
ers, or other persons; and further, that all property should be taxed 
according to its true value in money: Insurance Co. v. Hard, 8 O. N. P. 
36, 10 O. D. (N.P.) 469. 

“Accumulated deferred dividends or undivided profits” of a life 
insurance company are not in any way a part of the reserve funds, nor 
are they a debt of the company, and they must be returned for taxa¬ 
tion as one of the taxable assets of the company: Hynicka v. Insur¬ 
ance Co.. 4 O. N. P. (N.S.) 297, 17 O. D. (N.P.) 80. 


Art.XII, § 2. 



274 


Art.XII, §2. CONSTITUTION OF THE STATE OF OHIO OF 1851. 


XI. EXEMPTIONS. 

A. I*roperty of miinleipnl corporations. All exemptions of any 
private property in a municipal corporation, otherwise subject to 
taxation, from contributing- to the general revenue fund, are in con¬ 
flict with this section: Zanesville v. Richards, 5 O. S. 589. 

Gas wells, pipe lines, pumping stations and machinery owned by 
a municipal corporation and used by it for the conveyance of gas to be 
consumed by it and by its citizens, are used exclusively for a public 
use and are exempt from taxation: Toledo v. Hosier, 54 O. S. 418 
[reversing Toledo v. Hosier, 10 O. C. C. 257, 6 O. C. D. 590]. 

The ownership of lands by a municipal corporation does not bring 
them within any statutory exemption from taxation unless they are 
used in the exercise of a municipal function, and this is true, although 
they are leased by the municipality and the money realized is applied 
to a public purpose: Cincinnati v. Lewis, 66 O. S. 49. 

A law exempting from taxation a city’s gas wells, pipe line, etc., 
with which it supplies its inhabitants with gas, is valid: Toledo v. 
Yeager, 8 O. C. C. 318, 6 0. C. D. 273. 

General Code § 5356, which authorizes the exemption from taxation 
of a public building, although a part of it is leased, was held to be 
unconstitutional: Scott v. Athens, 1 O. D. (N.P.) 84. 

B. School property. Tn this section the word “public” is used, in 
some instances, to describe the ownership of property, and in others, 
as descriptive of the use to which the property is applied; and the 
term “public schoolhouses” means such schoolhouses as belong to the 
public, and are designed for schools established and conducted under 
public authority: Gerke v. Purcell, 25 O. S. 229. 

C. Public worship. The power to exempt from taxation “houses 
used -exclusively for public worship,” implies the power to so exempt 
such grounds as are reasonably necessary for the use of such houses; 
but the use must be the same, and therefore a parsonage on grounds 
adjoining'a church, which is used as a residence, can not be exempted 
from taxation: Gerke v. Purcell, 25 O. S. 229. 

Parish houses, otherwise known as the residences of the priests 
and bishops of the Roman catholic church, are not exempt from taxa¬ 
tion and legal assessments, by virtue of § 2, Art. XH, of the consti¬ 
tution: Watterson v. Halliday, 77 O. S. 150. 

Property owned by a church which leases it for a substantial 
rental to another church to be used exclusively for church purposes, 
is exempt from taxation under the laws of Ohio: New Jerusalem 
Society v. Richardson, 10 O. N. P. (N.S.) 214. 

D. Institution.s of purely public charity. Schools established by 
private donations, and conducted for the benefit of the public, and not- 
with a view to profit, are “institutions of purely public charity,” and 
such school property may be exempted from taxation without reference 
to the manner in which the title thereto is held, or the form or char¬ 
acter of the organization conducting the school: Gerke v. Purcell, 
25 O. S. 229. 

The express authority given in the constitution to exempt from 
taxation “houses used exclusively for public worship” carries with it, 
impliedly, authority to exempt such grounds as may be reasonably 

necessary for their use; but such grounds must subserve the same 
exclusive use to which the buildings are required to be devoted. The 
exemption is not of such houses as may be used for the support of 
public worship, but of houses used exclusively as places of public 

worship: Gerke v. Purcell, 25 O. S. 229. 

A corporation created for the sole purpose of affording “an asylum 
for destitute men and women, and the incurable sick and blind, irre¬ 
spective of their nationality or creed,” is an institution of purely public 
charity, within the meaning of § 2, Art. XII, of the constitution. Real 
estate leased to such an institution for a term of years, at a stipulated 
rent, is not exempt from taxation, although by the terms of the lease 
the institution may have agreed with the lessor to pay the taxes: 
Humphries v. Little Sisters of the Poor, 29 O. S. 201. 

An institution for the education of young men for the gospel 

ministry, and open to all. is “a purely public charity” within the 

meaning of § 2, Art. XH, of the constitution of Ohio: Little v. Semin¬ 
ary, 72 O. S. 417 [affirming Seminary v. Little, 2 O. C. C. (N.S.) 540, 
15 O. C. D. 609]. 

Parish houses, otherwise known as the residences of the priests 
and bishops of the Roman catholic church, are not exempt from taxa¬ 
tion and legal assessments, by virtue of § 2, Art. XII, of the constitu¬ 
tion, nor by the provisions of G. C. § 5349, et seq., although such places 
of residence are used by the priests and bishop for the discharge of 
many duties of a religious and charitable nature, which are imposed 
by the vows of their ordination and rules of the church: Watterson v. 



Art.XII ,§ 3. 


275 

CONSTITUTION OF THE STATE OF OHIO OF 1851. 


Halliday, 77 O. S. 150; for opinion below, see Watterson v. Halliday, 
2 O. N. P. (N.S.) 693, 15 O. D. (N.P.) 271. 

Private property which is appropriated to the support of educa¬ 
tion for the benefit of the public without any view to profit, is 
devoted to public charity within the meaning of the constitutional 
provision: Gerke v. Purcell, 25 O. S. 229; Myers v, Aikens, 8 O. C. C. 
228, sub nomine, Meyers v. Akins, 4 O. C. D. 425. 

A library association, incorporated under the laws of this state, 
whose objects and purposes are, “the diffusion of useful knowledge, 
and the acquirement of the arts and sciences, by the establishment 
of a library of scientific and miscellaneous books for general circu¬ 
lation, and a reading room, lectures and cabinets; open to all persons, 
without distinction, upon equal terms, and the income and revenue 
of which are devoted exclusively to such objects and purposes, is” an 
institution of purely public charity within the meaning of the sixth 
clause of act of March 21, 1864: Library Association v. Pelton, 36 O. 
S. 253. 

An exemption from taxation does not exempt from assessment for 
a local improvement: Lima v. Cemetery Association, 42 O. S. 128. 

In a general sense, a tax is an assessment, and an assessment is a 
tpx; but there is a well-recognized distinction between them, an 
assessment being confined to local impositions upon property for the 
payment of the cost of public improvements in its immediate vicinity, 
and levied with reference to special benefits to the property assessed: 
Lima v. Cemetery Association, 42 O. S. 128. 

General Code § 3963, which provides that no charge shall be made 
by a municipal corporation for water, which is supplied to hospital, 
asylum or other charitable institution, is a valid and constitutional 
provision, and authorizes the trustees of the waterworks to furnish 
water free to an Ohio hospital for epileptics, a part of which is within, 
and a part of which is without the municipal corporation in question: 
Gallipolis v. Waterworks, 2 O. N. P. 161, 4 O. D. (N.P.) 101. 

E. General exemptions. This section does not render Invalid the 
sixteenth subdivision of G. C. § 5376: Shotwell v. Moore, 45 O. S. 632. 

Every citizen is to be taxed upon his property without deduction 
or exemption, except as provided in § 2, of Art. XII, of the constitution: 
Ellis V. Linck, 3 O. S. 66. 

General Code § 5349, et seq., are within the authority which is con¬ 
ferred upon the general assembly by § 2 of Art. XII, of the constitution. 
They exempt from taxation an endowment fund of a college which 
belongs exclusively to it, and which is devoted solely to deriving an 
income for its support: Little v. Seminary, 72 O. S. 417 [affirming 
Seminary v. Little, 2 O. C. C. (N.S.) 540, 15 O. C. D. 609]. 

This section enumerates the subjects of taxation which may, by 
general laws, be exempted from taxation, viz., “burying grounds, pub¬ 
lic schoolhouses, houses used exclusively for public worship, insti¬ 
tutions of purely public charity, public property used exclusively for 
any public purpose, and personal property to an amount not exceed¬ 
ing in value $200 for each individual.” It follows that no subject of 
taxation not so enumerated can be exempted from taxation, nor can 
such exemption be made by special act: Bennehoff v. Mansfield, 2 O. 
N. P. 225, 2 O. D. (N.P.) 404. 

Moneys and credits which have been invested in bonds of munici¬ 
pal corporations of this state need not be listed for taxation: Whitely 
V. Arbogast, 9 O. C. C. (N.S.) 584, 19 O. C. D. 595 [affirming Whitely v. 
Arbogast, 6 O. N. P. (N.S.) 313, 17 O. D. (N.P.) 569]. 

Taxes upon business may be imposed or not, in the discretion of 
the general assembly: but the constitution requires the general 
assembly to pass laws taxing property, and it is not within the power 
of the general assembly to exempt or except property from taxation 
beyond the exemptions provided for in § 2, Art. XII, of the constitution: 
Assurance Co. v. Halliday, 127 Fed. 830, 14 O. P. D. 305. 

Shares of stock in a foreign corporation, a small part of the prop¬ 
erty of which corporation is subject to taxation in Ohio, are not 
exempt from taxation, if owned by residents of Ohio: Sturges v. 
Carter, 114 U. S. 511, 5 O. F. D. 428. 

The statutes provided for exempting from an assessment for a 
public highway, land which had heretofore been assessed for another 
highway, was held to be unconstitutional by reason of such exemp¬ 
tion: Fields V. Commissioners, 36 O. S. 476. 

1 Debates, 513; 2 Debates, 35-116, 124-130, 651, 723-742, 754, 755, 
789, 793, 818, 819, 826, 828, 830, 831, 839-842, 851, 852, 863, 870. 


Section 3. The general assembly shall provide, by law, Same subject, 
for taxing the notes and bills discounted or purchased, moneys 




276 


Art.XII, § 3. CONSTITUTION OF THE STATE OF OHIO OF 1851. 


loaned, and all other property,^ effects, or dues, of every descrip¬ 
tion, (without deduction,)^ of all banks, now existing, or here¬ 
after created, and of all bankers,^ so that all property employed 
in banking, shall always bear a burden of taxation, equal to 
that imposed on the property of individuals.** 

See note to Art. XII, § 2. 


I. Cited. III. Without deduction. 

II. Property employed in bank- IV. Bankers. 

ing. V. Burden to be equal. 

I. CITED. 

State, ex rel., v. Ferris, 53 O. S. 314; State, ex rel., v. Yates, 21 O. 

C. C. 686, 12 O. C. D. 298 [reversed. State v. Yates, 66 O. S. 546]. 

II. PROPERTY E3IPCOYED IN BANKING. 

Moneys deposited with a bank or banker (unless specially depos¬ 
ited) become the moneys of the bank or banker, appertaining to the 
business of banking, and proper to be listed with the other moneys 
belonging to that business; and this is equally true of general deposits, 
whether they happen to be used in the discounting of paper, or held in 
reserve to pay probable current demands: Ellis v. Linck, 3 O. S. 66. 

Under the nineteenth section of the tax law of April 13, 1852 (50 v. 

135), all the assets and resources of a bank, whether specie or balances 
in other banks, must, if emplo 3 ^ed in any manner whereby the bank 
obtains or reserves a per cent., premium, profit, or a consideration, be 
averaged for taxation. Specie unemployed, not on hand for sale, and 
from which the bank derives no profit, etc., is not required to be 
returned to the assessor. So balances due from other banks, upon 
which no interest, profit, or consideration is reserved or received, are 
not required to be returned to the assessor: Bank v. McGregor, 6 O. 
S. 45. 

There had been much controversy as to the form of property 
employed in banking which should constitute a basis of taxation. 
With a view, therefore, of putting an end to controversy on this sub¬ 
ject, and of defining with certainty the form in which property in this 
branch of business should be made a basis for taxation, this third 
section was inserted in the constitution: Bank v. Hines, 3 O. S. 1. 

In the administration of our tax laws, the holder of national bank 
shares has no right under the statutes, state and national, to deduct the 
legal bona fide debts from the value of such shares, but he is legally 
bound to pay tax upon the assessed value of such shares without 
deduction on account of such debts; property of this sort is “stock” 
and not “credits”: Chapman v. Bank, 56 O. S. 310 [following and 
approving Niles v. Shaw, 50 O. S. 370]. 

However, ingenuously and unsuccessfullj* the legislature may have 
by a definition of the constitutional phrase “property employed in 
banking” attempted to equalize the burdens of taxation upon all 
classes of banks, yet they can not thereby change the meaning of the 
constitutional provision, which clearly intended that everything which 
is regarded by the constitution as property—whether lands, moneys, 
credits, stocks or bonds—should be taxed wherever found, whether in 
the hands of a bank or an individual: Patton v. Bank, 10 O. D. (N.P.) 
321. 

The definition of “money” in G. C. § 5326 can not make such term 
have a different meaning, as applied to the property of banks, from 
that which it has as applied to the property of individuals: Patton v. 
Bank, 10 O. D. (N.P.) 321. 

See Art. XII, § 2, note VI. 

III. WITHOUT DEDUCTION. 

The tenth section of the law of April 13, 1853, which allowed 
individuals and certain corporations, in giving their tax lists, to deduct 
their liabilities from the amount of their monej’-s and credits, was 
held to be repugnant to the constitution of Ohio, and void. The consti¬ 
tution permitted no deduction of liabilities from moneys and credits: 
Bank v. Hines, 3 O. S. 1. 

Private bankers can not deduct their debts from their moneys 
and credits: Ellis v. Linck, 3 O. S. 66. 

“This section was inserted that there might be no doubt how exist¬ 
ing as well as future banks and bankers, whether incorporated or 
unincorporated, were to be taxed; that there might be no doubt what 
property of theirs was to be the object of taxation; and further, to 
deprive them of even the two hundred dollar exemption which may 



277 


CONSTITUTION OP THE STATE OP OHIO OP 1851. Art. YTT, § 4 


be permitted to individuals under § 2. And hence it is, that we find in 
it the words ‘without deduction’”; Bank v. Hines, 3 O. S. 1. 

This section imperatively requires that all property effects and 
dues of every description, belonging to banks should be taxed: Bank 
V. Hines, 3 O. S. 1, 

That part of R. S. § 2759 (repealed. 97 v. 280, § 2), regulating 
returns for taxation of unincorporated oanks and bankers, which 
provided that from the aggregate sum of the first five items therein 
enumerated, the county auditor shall deduct the aggregate sum of the 
filth, sixth, seventh and such portions of the eighth items as are by law 
exempt from taxation, is not repugnant to either § 2 or § 3, of Art. XIT, 
of the constitution, except to the extent of including the entire third 
item among those from which the deduction is to be made: Treasurer 
V. Bank, 47 O. S. 503; see, also, Patton v. Bank, 7 O. N. P. 401, 10 O. D. 
(N.P.) 321. 

In the administration of our tax laws, the holder of national bank 
shares has no right under the statutes, state and national, to deduct 
his legal bona fide debts from the value of such shares, but he is 
legally bound to pay tax upon the assessed value of such shares 
without deduction on account of such debts: Chapman v. Bank, 56 O. 
S. 310 [following and approving Niles v. Shaw, 50 O. S. 370]. 

IV. BANKERS. 

Persons having money employed in the business described in the 
fifteenth section of the act of April 13, 1852, are bankers, such as are 
forbidden to make deductions by the constitution. Art. XII, § 3: Ellis v. 
Linck, 3 O. S. 66. 

Under the act of April 12, 1858 (55 v. 128), a partnership engaged 
in the business of banking, was liable as such to the tax imposed by 
that act: Robinson v. Ward, 13 O. S. 293. 

V. BURDEN TO BE EQUAL. 

Statutory provisions, whereby different classes of property are 
listed and valued for taxation in and by different modes and agencies, 
are not necessarily in conflict with the provisions of this section: 
Wagoner v. Loomis, 37 O. S. 571. 

The right granted to a state to tax shares of national banks, can 
not be exercised by a state unless it imposes upon the moneyed 
capital in the hands of individual citizens of the state, a tax at least 
equal in amount upon the same valuation, as is imposed upon national 
bank shares. The shares of a bank are taxed, and not the property 
of the bank, except its real estate. The limitations in § 3, Art. XII, 
prohibit double taxation of the property of banks, bankers and corpo¬ 
rations; Trust Co. V. Lander, 62 O. S. 266 [affirming Trust Co. v. 
Lander, 19 O. C. C. 271, 10 O. C. D. 452]. 

If the charter of a bank fixes the rate of taxation therefor in such 
manner as to amount to a contract, neither subsequent, constitutional 
nor statutory provisions can authorize the legislature to modify the 
rate of taxation thus fixed as against the objection of the bank: 
Dodge V. Woolsey, 59 U. S. (18 How.) 331, 3 O. F. D. 300. 

1 Debates, 513; 2 Debates, 116-119, 651, 664, 742-744, 755, 789-793, 
818, 819, 828-831, 839-842, 851, 863, 870. 


Section 4. The general assembly shall provide for rais- Revenue, 
ing revenue, sufficient to defray the expenses of the state, for 
each year, and also a sufficient sum to pay the interest on the 
state debt. 

Keeping in view the difference between state debts and expenses, 
and the debts and expenses of her subdivisions, it is provided in this 
section that ‘‘The general assembly shall provide for raising revenue, 
sufficient to defray the expenses of the state, for each year, and also 
a sufficient sum to pay the- interest on the state debt: Cass v. Dillon, 

2 O. S. 607. 

By this section the general assembly is imperatively commanded 
‘‘to provide for the raising of revenue sufficient to defray the expenses 
of the state for each year.” It was, no doubt, intended by this pro¬ 
vision, that payment should go hand in hand with expenses: State v. 

Medbery, 7 O. S. 522. 

The general assembly is authorized by this section to meet and 
pay the expense of maintaining the state militia Furnishing an 
armory for the state militia, and the maintenance thereof, can not be 
at the expense of a county: State, ex rel., v. Brinkman, 7 O. C. C. 165, 

3 O C D 710; see, also, Hubbard v. Fitzsimmons, 57 O. S. 436. 

T Debates, 513; 2 Debates, 119, 651, 744, 748, 755, 789, 793, 818, 819. 

831, 839-842, 851, 863, 870. 



278 


Art.XII, § 5. 


Levying of taxes. 


CONSTITUTION OF THE STATE OF OHIO OF 1851. 


Section 5. No tax shall be levied, except in pursuance 
of law; and every law imposing a tax, shall state, distinctly, 
the object of the same, to which only, it shall be applied. 

Cited: State, ex rel., v. Harrison, 81 O. S. 98; Jones v. Commis¬ 
sioners, 2 O. C. C. (N.S.) 14, 15 O. C. D. 510; Martindill v. Sanger, 8 

O. N, P, 506, 11 O. D. (N.P.) 727; State, ex rel., v. Commissioners, 13 

O. D. (N.P.) 97; Commissioners v. Savings Institution, 119 Fed. 36, 55 
C. C. A. 614, 15 O. F. D. 33. 

The taxing power, which constitutes a branch of the legislative 
power, and which is of vital importance, and essential to the existence 
of government, can not be surrendered or abandoned, either in whole 
or in part, by the legislature, to promote private and individual inter¬ 
ests, so as to limit the power and control of future legislation over it; 

but like the right of eminent domain, and the right of control over 
existing laws by amendment and repeal, both of which are also vital 
and essential prerogatives of the legislative power, must continue in 
unabridged subserviency to the public safety and welfare, the original 
and paramount purpose of the delegation of all civil power by the 
people: Bank v. Bond, 1 O. S. 622; see, also. Debolt v. Trust Co., 1 O. S. 
563; Bank v. Debolt, 1 O. S. 591; Knoup v. Piqua Bank, 1 O. S. 603; 
Plank Road Co. v. Husted, 3 O. S. 578; Bank v. Wilbor, 7 O. S. 481; 
Skelly V. Bank, 9 O. S. 606. 

The supreme court of the United States holds such contracts valid: 
Dodge V. Woolsey, 59 U. S. (18 How.) 331; Bank v. Debolt, 59 U. S. 
(18 How.) 380; Bank v. Thomas, 59 U. S. (18 How.) 384; Piqua Bank v. 
Knoop, 57 U. S. (16 How.) 369. 

The supreme court of Ohio eventually followed the decisions of the 
supreme court of the United States; State, ex rel., v. Moore, 5 O. S. 
444; Bank v. Lewis, 5 O. S. 447. 

The power of taxation being a sovereign power, can only be exer¬ 
cised by the general assembly when^ and as conferred, by the constitu¬ 
tion; and by municipal corporations only when unequivocally delegated 
to them by the legislative body: Mays v. Cincinnati, 1 O. S. 268. 

Where an act authorized the county commissioners to levy a tax 
to build a bridge, leaving it to their discretion whether they will exer¬ 
cise the power so given, and they refuse to proceed, and thus abandon 
the building of the bridge, their act is not in violation of this section 
and article: State v. Commissioners, 31 O. S. 211. 

The act of March 21, 1881, appropriating money to repair the build¬ 
ings of the Ohio university, is not in conflict with this section: State, 
ex rel., v. Oglevee, 37 O. S. 1. 

It is claimed that G. C. § 177 is void, because it does not state the 
object for which the tax is imposed, as required by this section of the 
constitution. It is not necessary that the object should be stated in 
the very statute imposing the tax. It is sufficient, we apprehend, if 
the object distinctly appears from the statute read in connection with 
some other provision found elsewhere in the statutes of the state: 
Ashley v. Ryan, 49 O. S. 504. 

The act of April 15, 1889, requiring “every corporation or company 
operating a railroad or any part of a railroad within this state” to 
pay to the commissioner of railroads and telegraphs a fee of one dollar 
per mile for each mile of track operated by it within this state, contra¬ 
venes this section: Railway v. State, 49 O. S. 189. 

This section does not render invalid a statute (G. C. § 1249, et 
seq.), which authorizes the state board of health to require a municipal 
corporation to install a sewage puriflcation system: Board of Health 
V. Greenville, 86 O. S. 1 [reversing Greenville v. Demorest, 14 O. C. C. 
(N.S.) 113. 

Funds which are raised by a tax for the purpose of improving 
county roads can not, by a special statute, be applied to the purposes 
of a municipal corporation in such county; State, ex rel., v. Pohling, 
1 O. C. C. 486, 1 O. C. D. 271. 

The act of March 24, 1888, entitled “An act to authorize the board 
of county commissioners of the county of Williams to issue bonds, 
and to either repair, enlarge and improve the present courthouse or 
ro build a new one, in said county,” was held not to be in conflict with 
this section of the constitution in not stating distinctly its object: 
State, ex rel., v. Commissioners, 3 O. C. C. 403, 2 O. C. D. 227. 

An act providing that any money arising from a tax levy on oil 
wells in certain counties shall be collected by the treasurer and 
returned to the township treasurer where the wells are located in 
any sum not exceeding $2500 per annum, to be used as a road fund, 
is invalid: State, ex rel., v. Fangbouer, 14 O. C. C. 104, 7 O. C. D. 334. 

It was held in Mitchell v. Commissioners, 5 O. N. P. 158, 5 O. D. 
(N.P.) 262, that the statute which imposes liability upon a county for 
injury by mob violence (see G. C. § 6278, et seq.), was unconstitutional. 




278 a 


CONSTITUTION OF THE STATE OF OHIO OF 1851 . 


This case was, however, reversed in Mitchell v. Commissioners, 10 O. 
C. D. 801, which was affirmed in Commissioners v. Church, 62 O. S. 318. 

General Code § 7739, which provides for free textbooks, does not 
divert public funds from part of the taxpayers; nor does it discrim¬ 
inate ag-ainst persons whose children do not attend the public schools: 
Mooney v. Bell, 8 O. N. P. 658, 11 O. D. (N.P.) 786. 

A statute which provides for local option for residence districts 
is not a tax law within the meaning- of this article; Columbus v. 
Jeffrey, 2 O. N. P. (N.S.) 85, 14 O. D. (N.P.) 609. 

1 Debates, 513; 2 Debates, 119, 124, 651, 748, 754, 755, 789, 793, 818, 
819, 831, 839, 842, 851, 863, 870. 

Section 6 . Except as otherwise provided in this constitu¬ 
tion the state shall never contract any debt for purposes of in¬ 
ternal improvement. (As amended September 3, 1912.) 

Vote: “Yes,” 269,039; “No,” 248,864. 

Original § 6 read as follows: “Sec. 6. [Debt for internal im¬ 
provement.] The state shall never contract any debt for purposes of 
internal improvement.” 

See Art. VIII, § 4. 

This restriction applies to the state alone, and not to her sub¬ 
divisions: Cass V. Dillon, 2 O. S. 607. 

This section, it is quite evident, was not intended to prohibit the 
construction of railroads by municipal corporations, nor, indeed, to pro¬ 
hibit any species of public improvements: Walker v. Cincinnati, 21 O. 
S. 14. 

1 Debates, 513; 2 Debates, 119-124, 651, 748, 754, 755, 789, 793, 818, 
819, 831, 839-842, 851, 863, 870. 

Section 7. Laws may be passed providing for the taxation 
of the right to receive, or to succeed to, estates, and such taxa¬ 
tion may be uniform or it may be so graduated as to tax at a 
higher rate the right to receive, or to succeed to, estates of 
larger value than to estates of smaller value. Such tax may 
also be levied at different rates upon collateral and direct in¬ 
heritances, and a portion of each estate not exceeding twenty 
thousand dollars may be exempt from such taxation. (Adopted 
September 3, 1912.) 

Vote: “Yes,” 269,039; “No,” 248,864. 


Section 8 . Laws may be passed providing for the taxation 
of incomes, and such taxation may be either uniform or gradu¬ 
ated, and may be applied to such incomes as may be designated 
by law; but a part of each annual income not exceeding three 
thousand dollars may be exempt from such taxation. (Adopted 
September 3, 1912.) 

Vote: “Yes,” 269,039; “No,” 248,864. 

Section 9. Not less than fifty per centum of the income 
and inheritance taxes that may be collected by the state shall 
be returned to the city, village or township in which said in¬ 
come and inheritance tax originate. (Adopted September 3, 
1912.) 

Vote: “Yes,” 269,039; “No,” 248,864. 

Section 10. Laws may be passed, providing for excise and 
franchise taxes and for the imposition of taxes upon the produc¬ 
tion of coal, oil, gas and other minerals. (Adopted September 3, 
1912.) 

Vote: “Yes,” 269,039; “No,” 248,864. 


Art.XII, § 6. 


Debt for internal 
improvement. 


Taxation of 
inheritances. 


Taxation of 
incomes. 


Apportionment of 
inheritance and 
income tax. 


Taxation of 
franchises and 
production of 
minerals. 




278 b 


Art.XII, § 11. 


Sinking fund. 


Corporate pow¬ 
ers. 


CONSTITUTION OP THE STATE OP OHIO OP 1851 . 


Section 11 . No bonded indebtedness of the state, or any 
political subdivisions thereof, shall be incurred or renewed, 
unless, in the legislation under which such indebtedness is in¬ 
curred or renewed, provision is made for levying and collecting 
annually by taxation an amount sufficient to pay the interest on 
said bonds, and to provide a sinking fund for their final redemp¬ 
tion at maturity. (Adopted September 3, 1912.) 

Vote: “Yes,” 269,039; “No,” 248,864. 


ARTICLE XIII. 

CORPORATIONS. 

Section 1; The general assembly shall pass no special 
act conferring corporate powers. 

I. Applied, cited, construed, re¬ 
ferred to, etc. 

II. Munieipnl corporations. 

III. Counties and townships. 

IV. School districts. 

A'. AVhat are corporate powers. 

I. APPLIED, CITED, CONSTRUED, REFERRED TO, ETC. 

State V. Baughman, 38 O. S. 455; State v. Constantine, 42 O. S. 437; 
Dearborn v. Bank, 42 O. S. 617; Cincinnati v. Steinkamp, 54 O. S. 284; 
Purcell V. Riverside, 1 O. C. C. 12, 1 O. G. D. 648; State, ex rel., v. Price, 
8 O. C. C. 25, 4 O. C. D. 296; Beamer v. State, 21 O. C. C. 440, 12 O. C. 
D. 4; Jones v. Commissioners, 2 O. C. C. (N.S.) 14, 15 O. C. D. 510; State 

V. Toledo, 3 O. C. C. (N.S.) 468, 13 O. C. D. 327; Fagin v. Ohio Plumane 
Society, 6 O. N. P. 357, 9 O. D. (N.P.) 341; State, ex rel., v. Halliday, 

7 O. N. P. 47, 9 O. D. (N.P.) 738; Scarborough v. Gibson, 1 O. N. P. (N.S.) 
77. 13 O. D. (N.P.) 738; State v. Gibbs, 7 O. N. P. (N.S.) 345, 18 O. D. 
(N.P.) 681; State, ex rel., v. Wright, 9 O. N. P. (N.S.) 321, 20 O. D. (N.P.) 
231; Dodge v. Woolsey, 59 U. S. (18 How.) 331, Fed. Cases, 18032, 6 
McLean, 142, 3 O. F. D. 228; Griffin v. Railroad, 3 O. F. D. 441, Fed. 
Cases, 4581, referred to as showing that a corporation can be created 
only by legislative authority. 

Referred to in dissenting opinion: State v. George, 34 O. S. 657. 

II. 3IUNICIPAL CORPORATIONS. 

This section refers to municipal corporations as well as to private 
corporations: State v. Cincinnati, 20 O. S. 18; State v. Bingham, 14 O. 
C. C. 245, 7 O. C. D. 522. 

The rule that this provision applies to municipal corporations was 
also recognized in Horstman v. Railway, 1 O. N. P. (N.S.) 25, 13 O. D. 

• (N.P.) 670, and Horstman v. Railway, 12 O. D. (N.P.) 756, but this 
judgment was reversed in Railway v. Horstman, 72 O. S. 93, on the 
ground that the statute in question did not confer corporate power. 

A statute which extends the limits of a specific municipal corpo¬ 
ration, by name, and to confer upon such municipal corporation 
jurisdiction over a number of outlying incorporated suburban villages 
and other territory not before that time in the limits of that city, is 
unconstitutional: State v. Cincinnati, 20 O. S. 18. 

This section does not prevent a gift in perpetuity from being made 
by will to a municipal corporation as trustee for educational purposes: 
Perin v. Carey, 65 U. S. (24 How.) 465, 3 O. F. D. 634. 

Under the constitution of 1851, it was at first held by the supreme 
court that municipal corporations could be so classified that each of 
the principal cities of the state would be in a separate class and 
grade so that statutes might be enacted applying to but one city, 
although such statutes were generally, in their form and purport, to 
apply to all cities of that class and grade: State, ex rel., v. Coving¬ 
ton, 29 O. S. 102; Springer v. Avondale, 35 O. S. 620; State v. Baugh¬ 
man, 38 O. S. 455; Kumler v. Silsbee, 38 O. S. 445; State v. Pugh, 43 O. 
S. 98; State v. Hudson, 44 O. S. 137; State v. Hawkins, 44 O. S. 98; 
Marmet v. State, 45 O. S. 63; State, ex rel., v. Toledo, 48 O. S. 112; 
State, ex rel., v. Baker, 55 O. S. 1; Alter v. Cincinnati, 56 O. S. 47 [mod¬ 
ifying Ampt V. Cincinnati, 12 O. C. C. 119, 5 O. C. D. 356]; Railway v. 
Railway, 50 O. S. 603 [affirming Railway v. Railway, 6 O. C. C. 362, 3 
O. C. D. 493]; Shoemaker v. Cincinnati, 68 O. S. 603; Purcell v. River¬ 
side, 1 O. C. C. 12, 1 O. C. D. 648; Seifert v. Weidner, 12 O. C. C. 1, 5 O. 


A^'I. Special legi.slation in force 
at the adoption of the con- 
stitntion of 1S51. 

VII. Perpetual franchi.*ie.s. 

VIII. Local legislation. 




279 


CONSTITUTION OP THE STATE OF OHIO OP 1851 . 


C. D. 506 [affirmed in Seifert v. Weidner, 55 O. S, 646]; Ramsey v. 
Columbus. 12 O. D. (N.P.) 725; Defiance v. Schmidt, 123 Fed. 1, 59 
C. C. A. 159, 14 O. F. D. 408. 

The act of April 3, 1885 (82 v. lOi), which provided for the appoint¬ 
ment of a board of police commissioners in cities of the first grade, of 
the first class, was held not to be in conflict with this section; State, 
ex rel., v. Hudson, 44 O, S. 137. 

The act of April 3, 1885 (82 v. 101), establishing a board of police 
commissioners in cities of the first grade, of the first class, was held 
not to be a special act conferring corporate powers: State, ex rel., 
V. Hawkins, 44 O. S. 98. 

The provisions of the special act (77 v. 350), which authorized the 
court of common pleas of Greene county to appoint three police com¬ 
missioners for the city of Xenia, and vested in them the police powers 
of the city, was held not in conflict with the constitution: State v. 
Baughman, 38 O. S. 455. 

The act of March 25, 1880 (77 v. 83), which provided “that in all 
municipal corporations which may have heretofore, by ordinance, 
authorized the use of the streets for certain purposes, such ordinance 
shall be valid,” was held not in conflict with this section: Kumler v. 
Silsbee, 38 O. S. 445. 

An act authorizing cities of the first grade, of the first class, to 
annex contiguous municipalities was held to be valid, even though it 
is w’ithout the consent of the annexed municipalities: State, ex rel., 
V. Cincinnati, 52 O. S. 419. 

The law conferring upon cities of the first class, the power to 
annex whatever adjacent municipal corporations they desire, and the 
proposition submitted to all the municipal corporations affected, and 
if approved by an affirmative majority vote would be binding, was held 
valid: State, ex rel., v. Cincinnati, 8 O. C. C. 523, 8 O. C. D. 689. 

However, even when such classification was generally upheld, 
statutes which were so worded that they could apply to but one 
municipal corporation were frequently held to be unconstitutional: 
State, ex rel., v. Mitchell, 31 O. S. 592; Tone v. Columbus, 39 O. S. 281; 
State V. Constantine, 42 O. S. 437; State, ex rel., v. Anderson, 44 O. S. 
247; Columbus v. Sohl, 44 O. S. 479; Columbus v. Agler, 44 O. S. 485; 
State, ex rel., v. Schwab, 49 O. S. 229; Commissioners v. State, ex rel., 
S'"* O. S. 653; Railroad v. Martin, 53 O. S. 386; Hixson v. Eurson, 54 O. 
S. 470; State, ex rel., v. Cowles, 64 O. S. 162; State, ex rel., v. Pohling, 
1 O. C. C. 486, 1 O. C. D. 271 [reversing, without report. State v. 
Poling, 17 Bull. 60, 18 Bull. 18]; Herrmann v. Cincinnati. 6 O. C. D. 
151 [affirmed, without report, in Herrmann v. Cincinnati, 33 Bull. 210; 
Herman v. Cincinnati, 52 O. S. 676]; Merrill v. Toledo, 6 O. C. C. 430, 
3 O. C. D. 524; Carr v. West Carrollton, 8 O. C. C. 1, 4 O. C. D. 303; 
Commissioners v. State, ex rel., 12 O. C. C. 200, 5 O. C. D. 129; Keehn 

V Wooster, 13 O. C. C. 270, 7 O. C. D. 456; Korb v. Mitchell, 2 O. N. P, 

185, 3 O. D. (N.P.) 267; State, ex rel., v. Bader, 1 O. N. P. 394, 3 O. D. 
(N.P.) 99; State v. Gardner, 2 O. N. P. 405, 4 O. D. (N.P.) 34; Shaw v. 
Jones, 4 O. N. P. 372, 6 O. D. (N.P.) 453; Fagin v. Humane Society, 6 
O. N. P. 537, 9 O. D. (N.P.) 341; Willen v. Cincinnati, 12 O. D. (N.P.) 54 
[affirmed, without report, Cincinnati v. Willen, 66 O. S. 633]; Scar¬ 
borough V. Gibson, 13 O. D. (N.P.) 738, 1 O. N. P. (N.S.) 77 [affirmed, 
without report, Scarborough v. Gibson, 69 O. S. 578]; State v. Wright, 
9 O. N. P. (N.S.) 321; Investment Co. v. Youngstown, 68 Fed. 452, 9 O. 
F. D. 13; Loeb v. Township, 91 Fed. 37, 12 O. F. D. 349. 

Finally the classification of cities as then in force was held to 
be in violation of the constitution: Platt v. Craig, 66 O. S. 75 [revers¬ 
ing Walbridge v. Jones, 22 O. C. C. 682, 11 O. C. D. 496]; State, ex rel., 

Fmisely v. Jones, 66 O. S. 453; State, ex rel., v. Beacom, 66 O. S. 491; 

Railway v. North Bend, 70 O. S. 46 [affirming North Bend v. Railway, 
1 O. C. C. (N.S.) 301, 15 O. C. D. 268]. 

The act of the general assembly (94 O. L. 175) supplementing 
R S. § 2835, and which provides, “That any city of the third grade, 
of the first class may, subject to the provisions herein contained, 
construct, reconstruct, enlarge or repair a bridge or bridges across any 
navigable river or rivers, passing into or through such city,” etc., was 
held to be a special act applying only to the city of Toledo. Said act 
conferred corporate powers and was in conflict with Art. XIII, § 1, of 
the constitution of Ohio: Platt v. Craig, 66 O. S. 75 [reversing, Wal¬ 
bridge V. Jones, 22 O. C. C. 682, 11 O. C. D. 496]. 

All legislative acts relating to the same subject-matter should be 
construed together; and since all the* acts relating to the classification 
of municipalities and their reclassification and the division of classes 
into grades, evince the legislative intention that municipalities having 
substantially the same conditions and characteristics shall not enter 
and remain in the same class, such acts are ineffectual to designate 
classified recipients of corporate power, and an act to confer such 
power upon a single city, by such classification, is repugnant to 


Art.XIII, § 



280 


Art.XIII, §1. CONSTITUTION OF THE STATE OF OHIO OF 1851. 


Art. XTTT, § 1, of the constitution, which ordains that: “The general 
assembly shall pass no special act conferring corporate powers”: 
State, ex rel., v. Jones, 66 O. S. 453. 

A legislative enactment to provide for the organization and sup¬ 
port of a police force for a city, the expenses thereof to be paid by a 
tax levied upon all taxable property within such city, confers cor¬ 
porate powers: State, ex rel., v. Jones, 66 O. S. 453. 

The act of April 27, 1902, providing for the reorganization of the 
board of police commissioners of the city of Toledo, and the appoint¬ 
ment of such commissioners by the governor, being a special act con¬ 
ferring corporate powers, is void: State, ex rel., v. Jones, 66 O. S. 453. 

The court declined to determine whether any further classifica¬ 
tion than that suggested in Art. XIII, § 6 (that is, cities and incor¬ 
porated villages) could be made by the legislature; nor did it determine 
whether municipal corporations had such constitutional right to local 
self-government, that the legislature could not authorize the governor 
to appoint police commissioners: State, ex rel., v. Jones, 66 O. S. 453. 

The results of this change of judicial decision have frequently 
come before the courts for determination. 

A municipal corporation which has entered into a contract on the 
assumption of the validity of a statute, which subsequently appears 
to be unconstitutional, under the decision of the supreme court as to 
similar statutes, is estopped from setting up the invalidity of such 
statute: Mt. Vernon v. State, ex rel., 71 O. S. 428. 

Since the supreme court had declared to be valid a statute which 
provided for the employment of a tax inquisitor, in counties of the 
state which contain cities of certain grades and classes, the court 
held that if a contract had been entered into in reliance upon such 
decision, a service had been rendered thereunder, the party who per¬ 
formed such service was entitled to receive compensation at the 
contract rate for the service which he had rendered up to the time of 
the filing of the petition which challenged the validity of such con¬ 
tract, although in the meantime the court had decided that statutes 
of the same character were unconstitutional: Thomas v. State, 76 O. 
S. 341. 

A county officer who paid into the treasury of the county the fees 
of his office in excess of the salary appropriated for such office, by an 
act which was subsequently held to be unconstitutional, being special 
legislation (the act fixing the compensation of county officers in 
counties containing a city of the second grade, of the first class), may, 
after such statute is adjudged to be unconstitutional, receive and 
retain fees accruing before said adjudication, but not paid until after 
such adjudication: State, ex rel., v. Vail, 84 O. S. 399. 

A statute which authorized cities of the first class to construct a 
railway was held to be valid in Walker v. Cincinnati, 21 O. S. 14. 

Even if the court subsequently believed that such decision wa.s 
erroneous, it felt bound to uphold supplemental legislation: Cincinnati 
V. Taft, 63 O. S. 141; Cincinnati v. Ferguson, 12 O. D. (N.P.) 439 

[affirmed, without report, Cincinnati v. Ferguson, 47 Bull. 220]. 

III. COUNTIES AND TOWNSHIPS. 

This section does not apply to counties and townships even though 
they may be said by statute to be bodies corporate and politic. It 
applies only to municipal corporations and to private corporations: 
Bank V. Trustees, 13 O. D. (N.P.) 472; Bank v. Trustees, 98 Fed. 524, 
13 O. F. D. 318; Rees v. Olmstead, 135 Fed. 296, 68 C. C. A. 50, 14 O. F. 
D. 737. 

For compensation under an unconstitutional county officers’ act, 
see State, ex rel., v. Vail, 84 O. S. 399. 

IV. SCHOOL DISTRICTS. 

This section does not apply to school districts or to boards of 

education; since they are not corporations within the meaning of 

this section, even though a statute on the subject may term them 
bodies corporate and politic: State v. Powers, 38 O. S. 54; State, 

ex rel., v. Board of Education, 7 O. C. C. 152. 3 O. C. D. 703; see, also. 

State, ex rel.. v. Halliday. 7 O. N. P. 47, sub nomine. State, ex rel., v. 
Holliday, » O. D. (N.P.) 738. 

In Eckstein v. Board of Education, 10 O. C. C. 480. 4 O. C. D. 149, 
it was said, however, that a statute which authorized a school district 
by name to issue bonds was in violation of this section. 

Many of these statutes applicable to special citie.s. counties, town¬ 
ships and school districts are in violation of Art. II, § 26, requiring 
laws of a general nature to have uniform operation throughout the 
state 



281 

CONSTITUTION OP THE STATE OP OHIO OF 1851. 


V. WHAT ARE CORPORATE POWERS. 

An ordinance granting permission to a street railroad company 
to extend its track, is not an act conferring corporate powers. It is 
merely a permit to the corporation to exercise the corporate powers 
conferred by general law: Sims v. Railroad, 37 O. S. 556. 

Where a municipal corporation, in exercising the power of assess¬ 
ment to pay for a public improvement, levies an assessment upon 
property which was not subject to be charged therewith, and, in a suit 
brought to enforce the assessment the property thus charged was 
ordered to be sold to pay the same, it is competent for the legislature 
to relieve the property thus ordered to be sold, and to require the 
amount improperly charged thereon to be paid out of the funds of the 
corporation. Where the statute granting such relief does not confer 
corporate power, it may by a special act, in which the municipal cor¬ 
porations are named: State, ex rel., v. Hoffman, 35 O. S. 435. 

The legislature may authorize by special act the abandonment of 
a canal by the state and the disposition of it to an existing railway 
company: Vought v. Railroad, 58 O. S. 123. 

The special act of March 20, 1867 (64 O. R. 285), in so far as it 
authorized the Pennsylvania and Ohio Canal Company, upon certain 
conditions, to abandon a portion of its canal, is a permission to sur¬ 
render corporate power, not an attempt by special legislation to confer 
corporate power, and is, therefore, not in conflict with this section: 
Canal Co. v. Commissioners, 27 O. S. 14. 

A statute which created a board of trustees of the Cincinnati hos¬ 
pital and gave certain powers to such board was held not to be in 
violation of this section, since such board was not a corporation: 
State, ex rel., v. Davies, 23 O. S. 434. 

A statute which speciflcally grants to the council of the city of 
Cincinnati the power to approve or reject the regulations of the trus¬ 
tees of the Cincinnati hospital, confers corporate power upon the city 
of Cincinnati and violates this provision of the constitution: State v. 
Cincinnati, 23 O. S. 445. 

The power to issue bonds to raise funds for the repair and exten¬ 
sion of a hospital belonging to a city, and to levy a tax upon all the 
taxable property within such city, for their payment, is corporate 
power. The conferring of such power by special act is inhibited by 
this section; and to the effectiveness of the inhibition it is immaterial 
whether the act desi.gnates as the donee of such power the munici¬ 
pality itself, or an agency through which it ordinarily acts, or such 
extraordinary agency as a board of trustees. The comprehensive 
terms of this section do not admit of any exception on account of any 
supposed or real emergency: Cincinnati v. Hospital Trustees, 66 O. S. 
440. 

The board of trustees of the Toledo university is not a corporation, 
and a law conferring powers upon such board is not invalid, by reason 
of this section: State, ex rel., v. Toledo, 3 O. C. C. (N.S.) 468, 13 O. C. D. 
327. 

Since the legislature can not create a corporation by a special 
statute, a statute which creates a board of trustees of the Ohio state 
university will be regarded as creating a branch of the state govern¬ 
ment, and not as creating a corporation: Thomas v. Trustees, 195 
U. S. 207, 14 O. F. D. 433; Neil v. Trustees, 31 O. S. 15. 

A statute which authorizes a municipal corporation of a certain 
grade and class to build a system of waterworks was once held not in 
violation of this section: Ampt v. Cincinnati, 56 O. S. 47 [modifying 
Ampt V. Cincinnati, 12 O. C. C. 119, 5 O. C. D. 356]. 

This section does not render invalid a general statute which 
excludes building and loan associations from the operation of the usury 
laws: Building <fe Loan Association v. Desnoyers, 4 O. C. C. (N.S.) 

337, 16 O. C. D. 352; see, also, Cramer v. Loan & Trust Co., 72 O. S. 
395. 

The charter of the Marietta and Cincinnati Railroad Co., did not 
authorize it to mortgage or sell its corporate franchise to be a cor¬ 
poration; and a judicial sale upon mortgages executed by it, would not 
invest the purchasers with any corporate capacity whatever. A 
“special act” of the general assembly undertaking to give such an 
effect to the sale, and authorizing the purchasers to reorganize, create 
a new stock, and elect another board of directors, is, in substance and 
legal effect, an attempt to create a corporation and confer corporate 
powers by a special act; and is in conflict with the first and second 
sections of Art. XIII, of the constitution of the state: Atkinson v. 
Railway, 15 O. S. 21. 

VI. SPECIAL LEGISLATION IN FORCE AT THE ADOPTION OF 
THE CONSTITLTION OF 1851. 

This section forbids future legislation. It did not render invalid 
special legislation which was in force when the constitution of 1851 


Art.XIII, § 1. 



282 


Art.XIII, § 2. 


Corporations, 
how formed. 


CONSTITUTION OF THE STATE OF OHIO OF 1851. 


was adopted: Bank v. Wright, 6 O. S. 318; State, ex rel., v. Roosa, 11 
O. S. 16; State, ex rel., v. Trustees, 8 O. S. 394. 

A special act passed prior to the adoption of the constitution of 
1851, authorized commissioners therein named to open books, receive 
subscriptions to capital stock, and thereupon to organize a corporation 
under it, was not abrogated or repealed by Art. XIII, § 2, of the con¬ 
stitution of 1851, nor by the act “to create and regulate railroad 
companies,” passed May 1, 1852; State, ex rel., v. Roosa, 11 O. S. 16; 
see, also. State v. Laning, 7 O. N. P. (N.S.) 345, 18 o; D. (N.P.) 681. 

The act of the general assembly “authorizing county commis¬ 
sioners to grant further time for the completion of free turnpike roads, 
and paying for the same,” passed May 1, 1854, is not repugnant to 
the present constitution: Foster v. Commissioners, 9 O. S. 540. 

If a railroad corporation which was created prior to the consti¬ 
tution of 1851, takes advantage of the general statutes on the subject 
of consolidation, it becomes subject to legislative control and the 
statute may subsequently regulate the rates to be charged by such 
railway: Shields v. State, 95 U. S. 319, 4 O. F. D. 471. 

VII. PERPETUAL FR.4.XCHISES. 

By virtue of this section and the following section, the legisla¬ 
ture may revoke street railway franchises, which were granted at a 
time when no limitation was imposed upon their duration: State, 
ex rel., v. Railway, 1 O. C. C. (N.S.) 145, 14 O. C. D. 609 [affirmed, 
without report. State, ex rel., v. Railway, 73 O. S. 363]; see, also. 
Railway v. Cleveland, 137 Fed. Ill, 14 O. F. D. 513. 

The right to lay gas pipes in the public streets will be presumed 
not to be exclusive; but if it were, it could be revoked by this section 
of Art. XIII, § 2, and by Art. I, § 2: Coke Co. v. Hamilton, 146 U. S. 258, 
7 O. F. D. 358. 


VIII. LOCAL LEGISLATION. 

It was not the design of the framers of the constitution or of the 
people in adopting it, to withhold the power to provide such local or 
special laws as the public necessities might require: McGill v. State, 
34 O. S. 228. 

A temporary act may be either general or special; and an act of a 
general nature which operates uniformly throughout the state and 
upon every individual corporation of the classes therein defined, but 
which is by its terms limited in operation to a specified period of time, 
is a temporary general statute: Railway v. Horstman, 72 O. S. 93 
[reversing Horstman v. Railway, 1 O. N. P. (N.S.) 25, 13 O. D. (N.P.) 
670; Horstman v. Railway, 12 O. D. (N.P.) 756, and Horstman v. Rail¬ 
way, 14 O. D. (N.P.) 545]. 

In Rees v. Olmsted, 135 Fed. 296, 68 C. C. A. 50, 14 O. F. D. 737, 
it was held that this section did not render invalid a statute which 
provided that counties of a certain population might construct a road 
improvement and levy an extra tax therefor, on petition of a majority 
of the landowners, even if such statute applied only to one county in 
the state. 

A special law that detaches part of a municipality and attaches 
to an adjoining township, is valid: Metcalf v. State, ex rel., 49 O. S. 
586. 

1 Debates, 260, 340-363, 447, 458; 2 Debates, 644-650, 654-659, 667, 
675, 851, 863, 870. 


Section 2. Corporations may be formed under general 
laws; but all such laws may, from time to time, be altered or 
repealed. Corporations may be classified and there may be 
conferred upon proper boards, commissioners or officers, such 
supervisory and regulatory powers over their organization, busi¬ 
ness and issue and sale of stocks and securities,^ and over the 
business and sale of the stocks and securities of foreign corpora¬ 
tions and joint stock companies in this state, as may be pre¬ 
scribed by law. Laws may be passed regulating the sale and 
conveyance of other personal property, whether owned by a cor¬ 
poration, joint stock company or individual. (As amended Sep¬ 
tember 3 , 1912 .) 

Vote: “Yes,” 300,466; “No,” 212,704. 



Art.XIII, § 2. 


283 

CONSTITUTION OU THE STATE OF OHIO OF 1851. 


Original § 2 read as follows: “Sec. 2. [Corporations, how formed.] 
Corporations may be formed under general laws; but all such laws 
may, from time to time, be altered or repealed.” 


I* Cited. IV. Formation of corporations 

II. What are corporations. by special act. 

III. Prospective character of this V. Repeal and alteration, 

section. 

I. CITED. 

Railway v. Sharpe, 38 O. S. 150; Hubbard v. Brush, 61 O. S. 252; 
Railway v. Railway, 6 O. C. C. 362, 3 O. C. D. 493 [affirmed in Railway 
V. Railway, 50 O. S. 603]; Railway v. State, ex rel., 8 O. C. C. 220, 4 
O. C. D. 406 [affirmed, without report. Railway v. State, ex rel., 56 
O. S. 736, 1 O. S. U. 581, and 37 Bull. 193]; Seifert v. Weidner, 12 
O. C. C. 1, 5 O. C. D. 506; see, for opinion of supreme court. State, 
ex rel., v. Baker, 55 O. S. 1; Railway v. Cleveland, 137 Fed. Ill, 14 
O. F. D. 513. 

Cited by mistake for Art. XII, § 2: Insurance Co. v. Rowland, 196 

U. S. 611, 2 O. L. R. 515. 

II. AA'HAT ARE CORPORATIONS. 

This section is said to make no distinction between public and 
private corporations: State, ex rel., v. Cincinnati, 20 O. S. 18. 

A county is a necessary political organization: Boalt v. Commis¬ 
sioners, 18 O. 13. 

It is not, however, a corporation, but merely an organization for 
administrative purposes which is invested with a few’ of the functions 
of a corporation: Railway v. Commissioners, 1 O. S. 77; Commission¬ 
ers V. Mighels, 7 O. S. 109; Hunter v. Commissioners, 10 O. S. 515; 
State, ex rel., v. Cincinnati, 20 O. S. 18. 

III. PROSPECTIA E CHARACTER OF THIS SECTION. 

This section is said to be prospective and not restropective in its 
effect: Bank v. Wright, 6 O. S. 318; State v. Trustees, 8 O. S. 394; 

State V. Roosa, 11 O. S. 16; see, also, Railw’ay v. Commissioners, 1 O. 
S. 77; State, ex rel., v. Van Horne, 7 O. S. 327; see, also. Commissioners 

V. Nichols, 14 O. S. 260. 

Neither this section nor Art. VHI, § 6, repeals by implication, prior 
special statutes which gave to public corporations and quasi corpora¬ 
tions, the power to subscribe stock and to issue bonds in aid of rail- 
w^ays: Cass v. Dillon, 2 O. S. 607; State, ex rel., v. Perrysburg, 14 O. S. 
472. 

This section refers necessarily to charters which are granted after 
this section took effect: Gas Light Co. v. Cleveland, 71 Fed. 610, 9 O. 
F. D. 258. 

A special charter containing terms which amount to a contract 
can not be repealed by the constitution of 1851 or by legislation 
thereunder, if power to repeal was not reserved in the charter of the 
corporation: Cleveland v. Railway, 93 Fed. 113, 12 O. F. D. 459. 

It will not be presumed that a corporation created before the con¬ 
stitution of 1851 is exempt from legislative control: Zanesville v. 
Gas Light Co., 1 O. C. C. 123, 1 O. C. D. 73. 

IX. FORAIATION OF CORPORATIONS RA' SPECIAL, ACT. 

This section prevents the formation of a corporation, whether 
public or private, by special statute: Atkinson v. Railway, 15 O. S. 
21; State v. Sherman, 22 O. S. 411; Hixson v. Burson, 54 O. S. 470. 

A. REPEAL AND ALTERATION. 

Railroad corporations formed under the general laws enacted since 
this section took effect, possess under such statutes no privileges of 
which the legislature may not deprive them: State v. Sherman, 22 O. 
S. 411; Shields v. State, 26 O. S. 86; Railway v. Railway, 30 O. S. 604; 
State, ex rel., v. Hamilton, 47 O. S. 52; Railway v. Telegraph Associa¬ 
tion, 48 O. S. 390. 

Consolidated railroad companies organized in pursuance of the 
act of 1856 (53 v. 143), are corporations formed under a general law, 
w'ithin the meaning of this section, and as such are subject to the 
limitations and reservations contained therein, and in § 2, Art. I; and 
the general assembly may alter and regulate rates of fare chargeable 
by such companies: Shields v. State, 26 O. S. 86 [affirmed. Shields v. 
State, 95 U. S. (5 Otto) 319, 4 O. F. D. 471]. 

The legislature may change the provisions with reference to the 
construction of fences by railway companies: Railroad v. Schultz, 43 
O. S. 270. 




284 


Art.XIII, § 3. 


Dues from cor¬ 
porations; how 
secured. 

Double liability o 
state banks and 
inspection of 
private banks. 


CONSTITUTION OP THE STATE OP OHIO OP 1851. 


Even if a grant to a gas light company is exclusive, the rights 
thus given may by virtue of this section be taken away subsequently: 
Coke Co. V. Hamilton, 7 O. F. D. 358, 146 U. S. 258. 

A corporation formed under this section may, after its formation, 
be authorized to consolidate with other corporations: Dunham v. 
Kauffman, 10 O. N. P. (N.S.) 49, 20 O. D. (N.P.) 274. 

By virtue of this section. G. C. § 9010, which forbids railways to 
maintain certain kinds of relief associations, is constitutional: State, 
ex rel., v. Pennsylvania Co. and Railway Co., 13 O. C. C. (N.S.) 37. 

1 Debates, 260, 363-369, 458; 2 Debates, 644, 659-662, 675, 676, 851, 
863, 870. 

Section 3. Dues from private corporations shall be secured 
by such means as may be prescribed by law, but in no case 
shall any stockholder be individually liable otherwise than for 
the unpaid stock owned by him or her; except that stockholders 
of corporations authorized to receive money on deposit shall be 
held individually responsible, equally and ratably, and not one 
for another, for all contracts, debts, and engagements of such 
corporations, to the extent of the amount of their stock therein, 
at the par value thereof, in addition to the amount invested in 
such shares. No corporation not organized under the laws of 
this state, or of the United States, or person, partnership or 
association shall use the word ‘‘bank,” “banker” or “banking,” 
or words of similar meaning in any foreign language, as a desig¬ 
nation or name under which business may be conducted in this 
state unless such corporation, person, partnership or associa¬ 
tion shall submit to inspection, examination and regulation as 
may hereafter be provided by the laws of this state. (As 
amended September 3 , 1912 .) 

Vote: “Yes,” 377,272; “No.” 156,688. 

Section 3, as amended November 3, 1903: 95 v. 961, read as follows: 
“Sec. 3. [Dues from corporations; how secured.] Dues from private 
corporations • shall be secured by such means as may be prescribed by 
law, but in no case shall any stockholder be individually liable other¬ 
wise than for the unpaid stock owned by him or her. [As amended 
November 3, 1903: 95 v. 961.]” 

The vote adopting this amendment was “Yes,” 751,783; “No,” 29,383. 

Original § 3 read as follows: “Sec. 3. [Dues from corporations 
how secured.] Dues from corporations shall be secured, by such in¬ 
dividual liability of the stockholders, and other means, as may be 
prescribed by law; but, in all cases, each stockholder shall be liable, 
over and above the stock by him or her owned, and any amount unpaid 
thereon, to a further sum, at least equal in amount to such stock.” 


I. Applied, cited, etc. B. Who were liable. 

II. Original section. C. Nature of liability. 

A. Scope and effect. III. Amendment of 1903. • 

I. APPLIED, CITED, ETC. 

The history of this section and of the legislation which has been 
enacted thereunder is found in Brown v. Hitchcock, 36 O. S. 667. 

Referred to erroneously as Art. II, § 3: Swan v. Railway, 3 O. N. 
P. 225, 6 O. D. (N.P.) 162. 

II. ORIGINAL, SECTION. 

A. Scope and eflfeet. Under the original form of this section the 
legislature had no power to create a corporation without imposing 
a stock liability upon its stockholders: State, ex rel., v. Sherman, 22 
O. S. 411, 

The power of the general assembly under this section to provide 
means for securing the creditors of corporations, is not exhausted by 
the imposition of a personal liability on each stockholder over and 
above the stock owned by him, and any amount unpaid thereon, to a 
further sum equal to the amount of his stock. Express authority is 
conferred to provide other means of security: Hessler v. Punch & 
Shear Works, 61 O. S. 621. 



285 


CONSTITUTION OF THE STATE OP OHIO OP 1851. 


The original section was not regarded as self-executing. It ren¬ 
dered invalid statutes which provided for the organization of corpo¬ 
rations without imposing an individuality upon the stockholders; but 
it did not impose such liability without such legislation: Bank v. Rail¬ 
way, 197 U. S. 394; State, ex rel., v. Sherman, 22 O. S. 411; see on this 
question. Little v. Aultman, 15 O. D. (N.P.) 355. 

Under this section a statute which authorizes the formation of a 
corporation but made no provision for the liability of its stockholders, 
was unconstitutional: State, ex rel., v. Sherman, 22 O. S. 411. 

This section was remedial in character and was to be extended to 
all who fairly come within its terms: Rider v. Fritchey, 49 O. S. 285. 

This section in its original form was prospective and not retro¬ 
spective: Bank v. Wright, 6 O. S. 318. 

II. AVho were liable. A pledgee of shares of stock not trans¬ 
ferred to him on the books of the company, was not a stockholder 
within the meaning of this section: Henkle v. Manufacturing Co., 39 
O. S. 547. 

Where partners create a corporation to continue business, and 
capitalize the partnership property at an inflated value, the capital 
stock of the corporation amounting to such inflated value, and issue 
the shares of stock to the partners as paid-up, each partner receiving 
in proportion to his interest in the partnership, this is a fraud upon 
the corporation’s creditors, regardless of the stockholders’ intentions, 
and after deducting the true value of the partnership property trans¬ 
ferred, the balance is a debt due to the corporation: Gates v. Stone 
Co., 57 O. S. 60. 

A trustee in whose name stock stood on the stock books of a cor¬ 
poration, was held to be personally liable as a stockholder: Schwill v. 
Beckel, 1 O. N. P. (N.S.) 1, 104, 13 O. D. (N.P.) 699. 

A corporation can not buy its own stock: Coppin v. Greenlees & 

Ransom Co., 38 O. S. 275. 

The trustees of a mutual insurance company, by the regulations of 
which losses were to be paid by assessments, are not liable personally 
for losses upon policies issued by the company while they were in 

office: Kelley v. Bender, 22 O. C. C. 144, 12 O. C. D. 181. 

C. Nature of liability. The statutory liability of the stock¬ 
holders was not a primary resource or fund for the payment of 
the debts of the corporation; but was collateral and conditional to the 
principal obligation which rested on the corporation, and was to be 
resorted to by the creditors only in case of the insolvency of the 
corporation, or where payment could not be enforced against it by 
ordinary process. Where an action was instituted by part of the cred¬ 
itors of an insolvent corporation against the stockholders, to enforce 
such liability for the benefit of all the creditors, no creditor could 
acquire priority, or institute a separate suit for the enforcerhent of 
such liability in his own behalf: Wright v. McCormack, 17 O. S. 87. 

That such liability is collateral, see, also. Swan v. Railway, 3 O. 
N. P. 225, 5 O. D. (N.P.) 297, 6 O. D. (N.P.) 162. 

A holder of stock in an Ohio corporation, who transfers his stock 
after a corporate debt has been created, is not relieved from his statu¬ 
tory liability for such debt, by an agreement for an extension of the 
time for its payment; although such agreement be made by the corpo¬ 
ration and creditor after such transfer, and without the knowledge or 
consent of the transferor: Boice v. Hodge, 51 O. S. 236. 

The stockholders of a corporation whose names appear on the 
stock book, or in the absence of such book, on stubs of stock certifi¬ 
cates, as holders of stock, are subject to a stockholder’s liability for 
debts incurred by the corporation while such names are allowed to so 
remain. To avoid such liability, it must appear on the stock book 
in the one case, or on the stub of the stock certificate in the other, 
that the stock has been transferred to some one else: Herrick v. 
Wardwell, 58 O. S. 294. 

A statute which modifies the liability of stockholders is uncon¬ 
stitutional as applicable to liabilities which were incurred prior to the 
enactment of such statute: Swift & Co. v. Baking Co., 6 O. C. C. (N.S.) 
89, 17 O. C. D. 253; Little v. Aultman, 15 O. D. (N.P.) 355. 

A provision in a bond issued by a corporation whereby it was 
agreed that the stockholders should not be held liable upon such 
obligation, was said to be valid in Hull v. Coal & Iron Co., 20 O. C. C. 

533, 11 Q. C. D. 331. _ _ 

Contra: See Kreisser v. Light Co., 2 O. C. C. (N.S.) 597, 14 O. C. D. 

313 

For a discussion of the liability of stockholders under the former 
constitutional provision and the statutes enacted thereunder, see G. C. 
§ 8686 and note thereto. 

III. AMENDMENT OF 1903. 

The amendment of 1903 was self-executing as to debts incurred 
after the date of its adoption; and as to such debts it repealed former 


Art.XIII, § 3. 



286 


Art.XIII, § 4. 


Corporate prop¬ 
erty subject to 
taxation, 


Right of way. 


CONSTITUTTON OF THE STATE OF OHIO OF 1851. 


statutes: Sheets Manufacturing Co. v. Neer Manufacturing Co., 4 O. 
N. P. (N.S.) 201, 17 O. D. (N.P.) 119. 

1 Debates, 260, 369-385, 387-430, 433-443, 458; 2 Debates, 644, 667, 
668, 676, 851, 863, 870. 

Section 4. The property of corporations, now existing 
or hereafter created, shall forever be subject to taxation, the 
same as the property of individuals. 

Cited and referred to: Dodge v. Woolsey, 59 U. S. (18 How.) 331; 
Sanford v. Poe, 69 Fed. 546, 16 C. C. A. 305, 9 O. F. D. 50; Telegraph 
Co. V. Poe, 69 Fed. 557, 16 C. C. A. 683, 9 O. F. D. 63. 

There was no absolute necessity for this section, for without it 
§ 2, Art. XII, would have embraced existing and future corporations. 
This section, however, was inserted out of abundant caution, that 
there might be no doubt either as to existing or future corporations, 
what would be the rule of taxation: Treasurer v. Bank, 47 O. S. 503; 
see, also. Bank v. Hines, 3 O. S. 1. 

A corporate franchise, being a mere privilege or grant of author¬ 
ity by the government, is not property of any description, and conse¬ 
quently not subject to taxation: Bank v. Hines, 3 O. S. 1; Baker v. 
Cincinnati, 11 O. S. 534. 

The act of March 21, 1851, to regulate free banking, was held to 
be not inconsistent with any of the provisions of the existing consti¬ 
tution, and is not repealed by it: Bank v. Wright, 6 O. S. 318. 

The limitations in § 3, of Art. XII, and this section, of the consti¬ 
tution prohibit double taxation of the property of banks, bankers and 
corporations: Trust Co. v. Tjander, 62 O. S. 266 [affirming Trust Co. 
V. Lander, 19 O. C. C. 271, 10 O. C. D. 452]; Creech v. Railway, 2 O. N. 
P. 164, 3 O. D. (N.P.) 265: Hynicka v. Insurance Co., 4 O. N. P. (N.S.) 
297, 17 O. D. (N.P.) 80 [affirmed in Insurance Co. v. Hynicka, 5 O. N. P. 
(N.S.) 255, 18 O. D. (N.P.) 1]. 

The limitation in this section of the constitution, which pro¬ 
hibits double taxation of the property of corporations, applies only to 
taxation on property, and not to taxation of privileges or franchises. 
What is said in Trust Co. v. Lander, 62 O. S. 266, as to that limitation, 
is solely as to property taxation. That section of the constitution 
plainly shows that it applies to property taxation only, and has no 
reference to excise or franchise taxes: Gum Co. v. Laylin, 66 O. S. 
578. 

The legislature may provide for the taxation of the property of 
a corporation; also for the taxation of its shares of stock: Bank v. 
Miller, 19 Fed. 372, 5 O. F. D. 247. 

1 Debates, 260, 444, 458; 2 Debates, 659, 664-667, 676, 851, 863, 870. 

Section 5. No right of way shall be appropriated to 
the use of any corporation, until full compensation therefor 
be first made in money, or first secured by a deposit of money, 
to the owner, irrespective of any benefit from any improvement 
proposed by such corporation; which compensation shall be 
ascertained by a jury of twelve men, in a court of record, as 
shall be prescribed by law. 

See Art. 1. § 19, note. 

See Art. XIII, § 2, notes. 

T. Cited. 

II. Appropriation of right of 
way. 

III. Corporation. 

IV. Compensation. 

I. CITED. 

Lamb v. Lane. 4 O. S. 167; Railway v. Bolen. 76 O. S. 376; Freeman 

V. Hunter, 7 O. C. C. 117, 3 O. C. D. 689 [affirmed, without report. 
Hunter v, Freeman. 51 O. S. 574]; Toledo v. Bayer, 7 O. N. P. 324, 5 O. 
D. (N.P.) 87; Mitchell Furniture Companv v. Railway, 7 O. N. P. 640, 
9 O. D. (N.P.) 674. 

II. AI’PROPRIATION OP RIGHT OF WAY. 

Where the charter of a railroad company merely fixes a few points 
through which the road is to pass, from its commencement to its 
terminus, leaving the location of the road between the points specified 
to the discretion of the corporation, the railroad company having once 
located the road, their power to relocate, and for that purpose to 
appropriate the property of an individual, has ceased: Railroad v. 
Naylor, 2 O. S. 235. 

The same principle applies, whether the case be that of an 
attempt to relocate on the property of an individual, or that of using 
a street or highway for the purpose: Railroad v. Naylor, 2 O. S. 235. 


V. Deduction of benefits. 

VI. Compensation ascertained by 

VII. Mode of compensation pre¬ 
scribed by law. 



287 


CONSTITUTION OF THE STATE OP OHIO OP 1851. 


The general assembly possesses the constitutional power to confer 
upon a corporation authorized to construct a railroad, the right to 
appropriate grounds necessary for its use for a depot: Giesy v. 
Railroad, 4 O. S. 308. 

Where an incorporated company has, by its charter, authority to 
construct a road between given points, and to appropriate land to the 
width of sixty feet over which,to locate the same, and, when finished, 
to charge and collect tolls from travelers who pass over it. It was 
held that after the company has made such an appropriation of land 
for the purpose of its road, and freeholders have, in accordance with 
the provisions of the charter, ascertained and determined the owner’s 
damage, it may, within the sixty feet of ground used for the road, 
build a toll-house and dig a well for the accommodations of the toll- 
gatherers: Ward V. Bridge Co., 6 O. S. 15. 

“Any other structure, within the sixty feet, and essential to the 
carrying out the object sought by the corporators, and consonant with 
their charter, may, as an unavoidable and legitimate incident of the 
powers given them, be placed within the road limits’’: Ward v. Bridge 
Co., 6 O. S. 15. 

Grants of corporate power, being in derogation of common right, 
are to be strictly construed—particularly where the power claimed 
is a delegation of the sovereign power of eminent domain. Hence, 
where a railroad company is authorized by law only “to enter upon 
any land to survey, lay down and construct its road,” “to locate and 
construct branched roads from the main road to any town or places 
in the several counties through which the said road may pass,” to 
appropriate land for “necessary sidetracks,” and “a right of way over 
adjacent lands sufficient to enable such company to construct and repair 
its road;” and such company has located, and is engaged in the con¬ 
struction of its permanent main road along the north side of a town, 
it is not authorized to appropriate a temporary right of way, for the 
term of three years, along the south side of the town, to be used as a 
substitute for the main track while the same is in course of construc¬ 
tion along the north side of the town: Currier v. Railroad, 11 O. S. 228. 

Authority to lay down the necessary structure for a street rail¬ 
way, in a common highway or street, and to run cars thereon for the 
carriage of passengers for hire, may be lawfully granted to a company 
incorporated for that purpose, when no private right of the adjoining 
lotowners is thereby impaired: Railway v. Cumminsville, 14 O. S. 623. 

A railroad company authorized to change the location of its track, 
on account of difficulty of construction and other causes, may do so 
at any time before the construction of its road is completed at the 
point where the change is made: Atkinson v. Railroad, 15 O. S. 21. 

Having once located and constructed its road, the company can 
not relocate it, and for that purpose appropriate private property: 
Moorhead v. Railroad, 17 O. 340; Atkinson v. Railroad, 15 O. S. 21. 

Under the general corporation act of 1852 (50 v. 274, §§ 21, 27, 28) 
(see G. C. § 8759), a railroad company has power to condemn land 
for new sidetracks, leading from the main road to its depot buildings, 
whenever they become necessary in the proper management and 
operation of the road: Railway v. Daniels. 16 O. S. 390. 

A railroad company organized under and made subject to the pro¬ 
visions of the “act regulating railroad companies,” of February 11, 
1848 (46 V. 40), is not authorized to condemn priyate property to its 
exclusive use solely for the purposes of a wharf: Railroad v. Ironton, 
19 O. S. 299. 

The power given to municipal corporations to condemn private 
property for a public wharf is an express power; and the right of a 
railroad company to hold property exempt from the exercise of this 
power can not be extended, by construction, to lands held by the com¬ 
pany for uses and purposes for which it is not, by law, authorized to 
condemn private property: Railroad v. Ironton, 19 O. S. 299. 

Mere silence on the part of the landowner as to the laying of an 
interurban railway track in the highway passing through his land is 
not consent to the subsequent laying of a switch in said highway: 
Chambers v. Traction Co., 5 O. C. C. (N.S.) 298, 17 O. C. D. 193 [affirmed, 
without report. Traction Co. v. Chambers, 73 O. S. 348]. 

An additional burden is imposed upon the landowner by the laying 
of such a switch, and where this is done without compensation being 
made therefor, or consent first obtained, a constitutional right of the 
landowner is violated and an injunction will lie upon his petition: 
Chambers v. Traction Co., 5 O. C. C. (N.S.) 298, 17 O. C. D. 193 [affirmed, 
without report. Traction Co. v. Chambers, 73 O. S. 348]. 

General Code § 10128, et seq., which authorizes the appropriation 
of real property for dams, pipe lines and the like, is valid and con¬ 
stitutional and does not authorize the appropriation of property for 
any purpose for which the power of eminent domain may not be 
conferred: Heat & Power Co. v. White, 5 O. N. P. (N.S.) 201, 52 Bull. 
354 [affirmed, without report, Heat & Power Co. v. White, 77 O. S. 633]. 


Art.XIII, § 5. 



288 

Art.Xni, §5. CONSTITUTION OP THE STATE OP OHIO OP 1851. 


That whatever interest the plaintiff has in the streets in front of 
its property as appendant to its abutting lots, is as much property as 
the abutting lots. That it necessarily follows that such interest, if 
any it has, is within the protection of the constitution, and can not 
be taken by a railway company as right of way for its railroad, except 
upon full compensation being first made, such compensation (in the 
absence of consent) to be determined, by a jury, irrespective of any 
benefits resulting to the property by reason of the building of the 
road: Bending Co. v. Railway Co., 2 O. N. P. 317, 3 O. D. (N.P.) 430. 

The construction and maintenance of a telegraph or telephone line 
upon a highway is a new and additional burden upon the fee, to which, 
when the highway was established, it was not contemplated it would 
be subjected, and for which the owner is entitled to additional com¬ 
pensation: Denver v. Telephone Co., 10 O. D. (N.P.) 273;. see, to the 
same effect. Telephone Co. v. Cush, 14 O. D. (N.P.) 148. 

III. CORPORATION. 

This section does not apply to property taken for roads open to 
the public without charge: Toledo v. Preston, 50 O. S. 361; see, also, 
Fogarty v. Cincinnati, 7 O. N. P. 100, 9 O. D. (N.P.) 753. 

This section does not apply to cases of property taken to construct 
public roads or streets in towns or cities: Quinby v. Cleveland, 16 
O. F. D. 583. 

So far as the restrictions imposed upon the right of eminent 
domain by the constitution are concerned, the compensation to be made 
for land taken for street purposes need not first be made: Garvin v. 
Columbus, 5 O. N. P. 236, 5 O. D. (N.P.) 333. 

Corporate existence and the right to exercise the power of eminent 
domain can only be derived from legislative enactment; and before a 
company can demand a judgment of condemnation, it must show that 
both have been conferred upon it by a valid law, and that it has sub¬ 
stantially complied with the conditions which the law has annexed to 
the exercise of the power: Atkinson v. Railroad, 15 O. S. 21; Railroad 
V. Sullivant, 5 O. S. 276. 

In the absence of specific statutory authority which is itself general 
in character and not special legislation, the sale of the property of a 
corporation does not carry with it the franchises of a corporation or 
the right of eminent domain: Coe v. Railroad, 10 O. S. 372; Atkinson 
V. Railroad, 15 O. S. 21. 

IV. COMPENSATION. 

Where a piece or strip of land is, by appropriation made by a rail¬ 
road company, severed from its connection with the other land of the 
owner, in estimating the compensation to be made to the owner, not 
only is the abstract value of the strip or piece taken to be considered, 
but also its relative value, and the effect arising from its severance 
from the residue of the owner’s land, as well as the uses to which it is 
to be appropriated: Railroad v. Ball, 5 O. S. 568. 

Where a right of w'ay originally appropriated for one public use 
is afterward taken for another, the owner of the fee simple title* to 
the lands is entitled to recover a full and fair compensation for such 
additional burdens and inconveniences, not common to the general 
public, as accrue to him and his entire tract on which the easement is 
imposed, by reason of the change of uses to which the lands appro¬ 
priated have been subjected: Hatch v. Railroad, 18 O. S. 92. 

Where an entire tract of land is cut asunder by an appropriation 
of an easement upon it by a canal company, for the purpose of a canal, 
and this easement is afterward transferred by the canal company to a 
railroad company, for the purpose of a railroad, and the latter, in the 
construction of its railroad, throws up embankments or excavates 
cuts across a common public highway, skirting the tract, and consti¬ 
tuting the only convenient medium of access between the parcels into 
which the tract has been thus severed, the increased inconvenience and 
danger of access thus occasioned between the two parts of the tract 
are peculiar to the owner of the tract in the use of his property, not 
common to the public at large, and for this increase of inconvenience 
and danger, he is entitled to compensation: Hatch v. Railroad, 18 
O. S. 92. 

The rightful power of a canal company over the canal, in the 
absence of any statute or contract to limit it, being exclusive, any use 
of the waters of the canal for purposes of navigation, or for watering 
stock, by the owner of the fee simple of the lands intersected by it, 
being a matter of sufferance and not of right, the loss of these con¬ 
veniences, by reason of the change of use above mentioned, do not 
constitute an element to be reckoned in estimating the amount of his 
compensation: Hatch v. Railroad, 18 O. S. 92. 

Nor is such owner entitled, in such action, to recover on account 
of increased danger from fire to his buildings or other structures, by 





289 


CONSTITUTION OF THE STATE OF OHIO OF 1851. 


reason of the change of use aforesaid, unless the proximity of his 
buildings, etc., to the railroad be such as to render the danger immi¬ 
nent and appreciable: Hatch v. Railroad, 18 O. S. 92. 

In a proceeding under G. C. § 11084, et seq., by an owner of land, 
wrongfully occupied by a railroad company, to compel the company 
to appropriate and pay for the same, the measure of compensation is 
the value of the land at the time it is assessed in the proceeding: 
Railroad v. Perkins, 49 O. S. 326. 

In proceedings by a municipal corporation to appropriate private 
property for a street, a mortgagee whose mortgage is duly recorded is 
an “owner” within the meaning of that act, and entitled to notice of 
the pendency of such proceedings (see G. C. § 3682): Harrison v. 
Sabina, 1 O. C. C. 49, 1 O. C. D. 30. 

In condemnation proceedings brought by a traction company seek¬ 
ing to appropriate a right of way through a farm, the owner must be 
paid for the land taken its fair market value at the time it is taken, 
and testimony tending to introduce the element of probable benefit to 
the farm from the building of the road, or as to the price at which 
the farm may have been offered for sale, is incompetent: Traction 
Co. V. Dempsey, 9 O. N. P. (N.S.) 65. 

V. DEDUCTION OP BENEFITS. 

The provisions of Art. I, § 19, and Art. XIII, § 5, of the constitution, 
the one requiring compensation to be made without deduction for 
benefits, when property is appropriated to a public use, and the other 
providing for compensation, irrespective of benefits, where it is taken 
by a corporation for a right of way, are, in legal effect, identical. 
When taken under either section, its fair market value in cash, at the 
time it is taken, must be paid to the owner; and the jury, in assessing 
the amount, has no right to consider or make any use of the fact 
that it has been increased in value by the proposal or construction of 
the improvement: Giesy v. Railway, 4 O. S. 308. 

If compensation is claimed for the location and construction of a 
railroad between coal mines and a navigable river on the landowner’s 
premises, whereby the conveniences of the river transportation for the 
coal to market were injured, or cut off, it is competent for the railroad 
company to show that the river transportation, in connection with the 
coal banks, had ceased to be valuable, or become of less value by 
means of the facilities for coal transportation afforded by the railroad, 
for the purpose of reducing the damages: Railroad v. Ball, 5 O. S. 668. 

In case of a railroad appropriation for a right of way through a 
tract of land causing incidental and local injury to the residue of the 
tract, although general resulting benefits from the railroad to the 
value of such residue of the land can not be taken into account in 
estimating the amount of compensation to be paid to the owner, yet 
where a local incidental benefit to the residue of the land is blended 
or connected, either in locality or subject-matter, with a local inci¬ 
dental injury to such residue of the land, the benefit may be consid¬ 
ered in fixing the compensation to be paid the owner, not by way of 
deduction from the compensation, but of showing the extent of the 
injury done the value of the residue of the land: Railroad v. Ball, 
5 O. S. 568. 

In assessing the compensation for a local incidental injury to the 
residue of the owner’s tract of land, arising from the appropriation 
of the right of way and construction of a railroad, whether a local 
incidental benefit arising from the railroad structure to the residue of 
the tract, but not connected either in locality or subject-matter with 
the injury, can be taken into the account in estimating the compensa¬ 
tion for the damages—quaere: Railroad v. Ball, 5 O. S. 568. 

In a proceeding by a raAroad corporation for an appropriation of 
a right of way under the act of April 30, 1 852 (50 v. 201), the jury, 
after allowing for the full value of the land actually appropriated for 
the right of way, in view of all its uses and relations, without deduc¬ 
tions for benefits of any kind, in their estimate and assessment of the 
incidental damages accruing to other lands of the owner, can not 
legally take into consideration and make allowance for general benefits 

_or such as accrue to the community and vicinage at large—from the 

construction of the work proposed. Whether special benefits, or such 
as accrue directly or solely to the owner of the lands appropriated, 
may be taken into consideration and allowed for—quaere: Railroad 
v. Collett, 6 O. S. 182. 

A city ordinance directing the appropriation of lands for the 
extension of a public street, requiring the costs of the appropriation 
proceedings, including the compensation that may be awarded to the 
owners, shall be assessed upon the abutting property of such owners, 
violates this section: Rhoades v. Toledo, 6 O. C. C. 9, 3 O. C. D. 325 
[affirmed, without report, Toledo v. Rhodes, 51 O. S. 562]; see, to the 
same effect, Railway v. Cincinnati, 62 O. S. 465; Dayton v. Bauman. 


Art.xni, § 5. 




290 


Art.XIII, § 6. 


Organization of 
cities, etc. 


CONSTITUTION OF THE STATE OP OHIO OF 1851. 


66 O. S. 379; Carlisle v. Cincinnati, 8 O. C. C. (N.S.) 46, 19 O. C. D. 81 
[affirmed, without report, Carlisle v. Cincinnati, 77 O. S. 637]. 

The opposite view was taken in earlier Ohio cases: Cleveland v. 
Wick, 18 O. S. 303; Chamberlain v. Cleveland, 34 O. S. 551; Raymond v. 
Cleveland, 42 O. S. 522; Caldwell v. Carthage, 49 O. S. 334; Henkel v. 
Cincinnati, 58 O. S. 726. 

\ I. COMPENSATION ASCERTAINED RY JI RY. 

“It has been held in Willyard v. Ha'milton, 7 O. (pt. 2) 111, that 
the value of property taken for public uses might rightfully be assessed 
by commissioners, it not being a case for trial by jury, secured by the 
constitution, and that the proceeding need not be had in a court of 
justice. And the reason why it was not secured by the constitution 
was, that it had never been so regarded in England or this country 
prior to the adoption of that instrument. This course of proceeding 
by commissioners had been much complained of as unjust and oppres¬ 
sive to the owner of the property; and to make at once a proceeding 
within the protection of the constitution, and to be pursued in a court 
of justice with a common-law jury, this § 5, of Art. XIII, was inserted 
when the constitution was revised. It intended to afford the party the 
same protection as in other cases of jury trial, no more and no less”: 
Work V. State, 2 O. S. 296. 

Where a railway corporation has commenced proceedings to appro¬ 
priate land for a right of way and damages have been found by the 
jury, and the corporation then abandons that right of way, the land- 
owner can not enforce such verdict: State, ex rel., v. Railroad, 17 
O. S. 103. 

In proceedings by a corporation to appropriate private property, 
there must be a judgment confirming the verdict of the jury, before 
the corporation is entitled, by a deposit of the amount of such verdict, 
to possession of the property appropriated: Wagner v. Railway, 38 
O. S. 32. 

YII. MODE OP COMPENSATION PRESCRIBED BY YAW. 

If a statute which complies with the requirements of the consti¬ 
tution prescribes the method of demanding compensation, such method 
is exclusive: Railway v. Whitacre, 8 O. S. 590; Hueston v. Railway, 
4 O. S. 685; Akron v. McComb, 18 O. 229. 

The constitiition of 1851 rendered invalid prior legislation as to 
the method of ascertaining compensation which did not comply with 
the provisions of such constitution: Canal & Hydraulic Co. v. Fitz¬ 
gerald, 10 O. S. 513. 

1 Debates, 260, 444-447, 458; 2 Debates, 644, 667, 668, 674-676, 841, 
849-851, 863, 870. 

Section 6 . The general assembly shall provide for the 
organization of cities, and incorporated villages, by general laws, 
and restrict their power of taxation, assessment, borrowing 
money, contracting debts and loaning their credit, so as to pre¬ 
vent the abuse of such power. 

I. Applied, cited, construed, re¬ 
ferred to, etc. 

II. Scope and effect. 

III. Organization of cities and 

villages. 

IV. General laws. 

V. Taxation. 

I. APPLIED, CITED, CONSTRUED, REFERRED TO, ETC. 

Cass V. Dillon, 2 O. S. 607; Hill v. Higdon, 5 O. S. 243; McGill v. 

State, 34 O. S. 228; State v. Powers, 38 O. S. 54; State v. Pugh, 43 O S’ 

98; State, ex rel., v. Anderson, 44 O. S. 247; Marmet v. State, 45 O S 63- 
Kenton v. State, ex rel., 52 O. S. 59; State v. Gardner, 54 O S 24* 
Hixson V. Burson, 54 O. S. 470; Walsh v. Barron, 61 O. S. 15; Cincinnati 
V. Taft, 63 O. S. 141; Platt v. Craig, 66 O. S. 75; State, ex rel., v. Jones 

66 O. S. 453; Mt. Vernon v. State, ex rel., 71 O. S. 428; Emmert v’ 

Elyria, 74 O. S. 185; Nye v. State, 1 O. C. C. 355, 1 O. C. D. 198 [affirmed' 
without report. State v. Nye, 18 Bull. 412]; Norwood v. Association’ 

7 O. C. C. 95, 3 O. C. D. 680; State, ex rel., v. Price, 8 O. C. C 25 4 

O. C. D. 296; Hunt v. Hunter, 11 O. C. C. 69, 5 O. C. D. 90 ' Ampt’v 

Cincinnati, 12 O. C. C. 119, 5 O. C. D. 356 [affirmed, without report 

Alter V. Cincinnati, 56 O. S. 47]; Newton v. Toledo, 18 O. C. C. 756’ 

8 O. C. D. 607 [affirmed, without report, Toledo v. Newton, 52 O. S. 649]; 


VI. Assessment. 

A. Existence and nature of 

power. 

B. Purpose for which assess¬ 

ment may be levied. 

C. Apportionment. 

* D. Source of power. 

VII. Borrowing money, etc. 

VIII. Specific Illustrations. 



Art.XIII, § 6. 


291 

CONSTITUTION OF THE STATE OF OHIO OF 1851. 


Lloyd V. Dollisin, 3 O. C. C. (N.S.) 328, 13 O. C. D. 571 [affirmed, without 
report. State, ex rel., v. Dollison, 68 O. S. 688]; Raynolds v. Cleveland, 
13 O. D. (N.P.) 125; Bank v. Trustees, 13 O. D. (N.P.) 472; Defiance v. 
Schmidt, 123 Fed. 1, 69 C. C. A. 159, 14 O. P. D. 408. 

II. SCOPE AND EFFECT. 

This section relates exclusively to cities and villages, and can have 
no application to counties or county commissioners; State, ex rel., v. 
Commissioners, 17 O. S. 568. 

This section has no application to school districts: Bank v. Trus¬ 
tees, 98 Fed. 624, 13 O. F. D. 318. 

Under the restrictive and mandatory provisions of the first and 
sixth sections of Art. XIII, of the constitution of 1851, the general 
assembly can not, by a special act, create a corporation, nor can it, by 
special act, confer additional powers on a corporation already existing; 
and in the purview and application of the provisions of those sections 
of the constitution, there is no distinction between private and munic¬ 
ipal corporations: State, ex rel., v* Cincinnati, 20 O. S. 18. 

The power vested in the general assembly under this section, to 
restrict the powers of taxation and assessment by municipal corpora¬ 
tions, is subject to the limitations imposed by § 10, Art. I, of the con¬ 
stitution of the United States, which declares, that “no state shall pass 
any law impairing the obligations of contracts,” and of § 28, Art. II, of 
the state constitution: Goodale v. Fennell, 27 O. S. 426. 

It was not the design of the framers of the constitution, or of the 
people in adopting it, to withhold the power to provide such local or 
special laws as the public necessities might require: McGill v. State, 
34 O. S. 228. 

The restrictions placed upon the legislature by this section are 
mandatory and not merely directory: Griswold v. Felton, 34 O. S. 482. 

Article XIII, § 6, does not conflict with Art. II, § 26: Falk, Ex parte, 
42 O. S. 638. 

The courts of the state have no power to declare a statute con¬ 
ferring the power of assessment on municipal corporations of a certain 
grade and class, for the improvement of their streets, invalid, on the 
ground that the statute does not adequately restrict the power so as 
to prevent abuse. The duty imposed by § 6, Art. XIII, of the consti¬ 
tution, is, in this regard, addressed to the conscience and judgment of 
the legislature, and is not the subject of judicial correction: Parsons 
V. Columbus, 50 O. S. 460. 

Section 19, of Art. I, of the constitution is a limitation upon § 6, of 
Art. XIII, as to the power of assessments: Railway v. Cincinnati, 62 
O. S. 465; see, also, Dayton v. Bauman, 66 O. S. 379. 

It is evident from the legislation and decisions since the consti¬ 
tution, as well as from the manifest purpose of § 6, Art. XIII, of the 
constitution, directing the general assembly to provide for the organi¬ 
zation of cities and incorporated villages by general laws, that all 
municipal corporations are comprised within its terms and that outside 
of the system so provided for there is no room for a corporation having 
general municipal powers: Railroad v. North Bend, 70 O. S. 46. 

It was the purpose of the legislature, in adopting the municipal 
code, to carry out the constitutional requirements of this section, 
therefore, where one of two constructions of a section or sections of 
such municipal code will effect this purpose and the other will not, 
the former will be adopted: Smith v. Rockford, 4 O. N. P. (N.S.) 513, 
17 O. D. (N.P.) 649. 

III. ORGANIZATION OF CITIES AND VILLAGES. 

Proceedings to annex contiguous territory to the corporate limits 
of the town, in pursuance of the fourteenth section of the act to pro¬ 
vide for the organization of cities and incorporated villages (50 v. 223, 
repealed, 66 v. 284), are not in contravention of the provisions of the 
constitution: Powers v. Commissioners, 8 O. S. 285; Blanchard v. Bissell, 
11 O. S. 96. 

The general act of May 3, 1852 (50 v. 223, repealed, 66 v. 284), “to 
provide for the organization of cities and incorporated villages,” did 
not annihilate and recreate the municipal corporations of the state, but 
recognized and continued them, leaving their corporate identity un¬ 
affected: State, ex rel., v. Perrysburg, 14 O. S. 472. 

The municipal code of 1902 did not destroy the municipal corpora¬ 
tions then in force; and hamlets then existing having a population of 
less than 5,000 at the last federal census became villages: Railroad v. 
North Bend, 70 O. S. 46 [affirming North Bend v. Railroad, 1 O. G. C. 
(N.S.) 301, 15 O. C. D. 268]. 

The power of creating municipal corporations necessarily implies 
authority to confer upon them such police powers as may be necessary 
for their internal government; and a resolution of a city council re¬ 
quiring lots, on which is stagnant water, to be filled up, being a reason- 




292 


Art.XIII, §6. CONSTITUTION OP THE STATE OP OHIO OP 1851. 


able sanitary measure for preserving the health of the inhabitants, is 
not in conflict with the constitution: Bliss v. Kraus, 16 O. S. 54. 


IV. GENERAL. LAWS. 

The act of April 16, 1870 (67 v. 141), “to prescribe the corporate 
limits of Cincinnati,” is a special act. It assumes to confer upon the 
corporation of that city additional powers; to confer, on certain con¬ 
ditions, the power of municipal government, the power of police 
regulation, the power of judicial jurisdiction, and of assessment and 
taxation, over a number of outlying incorporated suburban villages and 
other territory not before within the limits of the city; and is there¬ 
fore repugnant to the constitution, and of no binding force and validity: 
State, ex rel., v. Cincinnati, 20 O. S. 18. 

Under the restrictive and mandatory provisions of this and the 
first section of this article, the general assembly can not, by a special 
act, confer additional powers on a corporation already existing; and in 
the purview and application of the-provisions of these sections, there 
is no distinction between ^private and municipal corporations: State, 
ex rel., v. Cincinnati, 20 O. S. 18. 

The principle seems to be, that a law which relates to certain 
municipal corporations as a class, and, having a like effect upon all 
within the class, is general; but one that relates to a particular munic¬ 
ipality of a class, is special: Bronson v. Oberlin, 41 O. S. 476. 

The organization and government of cities is left, by the consti¬ 
tution, to the general assembly, with the requirement (§ 6, Art. XIII) 
that it shall, by general laws, provide therefor; and the entire system 
of municipal government in this state has, in the exercise of this power, 
been created by the legislature: State, ex rel., v. Hawkins, 44 O. S. 98. 

Under the power to organize cities and villages, the general assem¬ 
bly is authorized to classify municipal corporations, and an act relating 
to any such class may be one of a general nature: State, ex rel., v 
Hudson, 44 O. S. 137. 

An act which provides a form of government for all cities having a 
population of not less than 27,000 and not more than 34,000, except 
cities of the third grade, second class, was held not to contravene this 
section either as to the general classification or as to the exception: 

State, ex rel., v. Baker, 55 O. S. 1; see, also. Alter v. Cincinnati, 56 

O. S. 47 [modifying Ampt v. Cincinnati, 12 O. C. C. 119, 5 O. C. D. 356] ; 
Seifert v. Weidner, 12 O. C. C. 1, 5 O. C. D. 506 [affirmed, Seifert v. 
Weidner, 35 Bull. 399]; State v. Gardner, 2 O. N. P. 405, 4 O. D. (N.P.) 
34 [overruled in part. State v. Gardner, 54 O. S. 24]; Dorgan v. Colum¬ 
bus, 12 O. D. (N.P.) 121. 

V. TAXATION. 

The authority and duty to prevent an abuse of the powers of 
taxation and assessment by municipal corporations is intrusted by this 
section of the constitution to the general assembly, and not to the 
courts of the state. And the power of the legislature to authorize local 

taxation can not be judicially denied on the ground that the purpose 

for which it is exercised is not local, unless the absence of all special 
local interest is clearly apparent: Walker v. Cincinnati, 21 O. S. 14. 

Where the authority given is to construct a line of railroad, having 
one of its termini in such city, it does not affect the question of power, 
that the road, when constructed, will lie mainly outside of the state of 
Ohio. It is the corporate interest of the municipality which determines 
her right of taxation, and not the location of the road, which may well 
be constructed with the consent of the state into or through which it 
may pass: Walker v. Cincinnati, 21 O. S. 14. 

It is well settled in this state, by repeated adjudications, that, inde¬ 
pendent of constitutional prohibitions, it is within the legitimate scope 
of legislative power to authorize a city to aid in the construction of 
railroads or other public improvements in which such city has a special 
interest, and to impose taxes upon its citizens for that purpose: Walker 
V. Cincinnati, 21 O. S. 14. 

It follows that it is equally competent for the legislature to author¬ 
ize the entire construction of such improvements by a city having a 
special interest therein, and to empower the local authorities to provide 
means therefor by the taxation of its citizens: Walker v. Cincinnati, 
21 O. S. 14. 

Taxation can only be authorized for public purposes. Where, 
therefore, a statute authorizes a county, township or municipality to 
levy taxes not above a given per cent, on the taxable property of the 
locality, for the purpose of building so much of a railroad as can be 
built for that amount, and the part of a railroad to be built can be of no 
public utility unless used to accomplish an unconstitutional purpose, 
such tax is illegal, and can not be imposed: Taylor v. Commissioners, 
23 O. S. 22. 



293 

CONSTITUTION OF THE STATE OP OHIO OP 1851. 


This section does not render invalid a statute by which the legisla¬ 
ture authorizes the state board of health to compel a municipal corpo¬ 
ration to install a sewage purification plant: Board of Health v, 
Greenville, 86 O. S. 1 [reversing Greenville v. Demorest, 14 O. C. C. 
(N.S.) 113]. 

VI. ASSESSMENT. 

A. Existence and nature of power. The power of levying local 
assessments is well settled in Ohio: Cleveland v. Wick, 18 O. S. 303. 

In a general sense, a tax is an assessment, and an assessment is a 
tax; but there is a well-recognized distinction between them—an assess¬ 
ment being confined to local impositions upon property for the pay¬ 
ment of the cost of public improvements in its immediate vicinity, and 
levied with reference to special benefits to the property assessed: Lima 
V. Cemetery Association, 42 O. S. 128. 

The constitution so limits the power of assessments as to prevent 
its abuse: Cincinnati v. Oliver, 31 O. S. 371. 

The general assembly is empowered by this section to restrict the 
use of assessments by cities and villages, so as to prevent the abuse 
of the power: Alder v. Whitbeck, 44 O. S. 539. 

The limitation of § 19, Art. I, of the constitution on § 6, of 
Art. XIII, as to assessments, goes to the full extent of prohibiting the 
raising of money directly or indirectly by assessment to pay compen¬ 
sation, damages of costs, for lands appropriated by the public for public 
use: Railway v. Cincinnati, 62 O. S. 465 [approved and followed, Dayton 
V. Bauman, 66 O. S. 379], 

Section 53 of the municipal code of 1902 (G. G. § 3819, et seq., prior 
to the amendment of April 21, 1904; 97 O. L. 126), which provided that 
assessments upon a lot for any and all purposes, within a period of 
five years, were limited to thirty-three per centum of the tax value 
thereof, was so construed that assessments levied prior to that enact¬ 
ment, and within the five-year period were to be considered in applying 
the limitation to assessments subsequently levied: Gray v. Toledo, 
80 O. S. 445. 

An act does not contravene this section because the lands within 
such district are to be assessed for the improvement “in proportion to 
the benefits which may result from said improvement to said lots and 
lands,” and there is no express provision that such assessments shall 
not in any case exceed the amount of benefit conferred on such prop¬ 
erty; if it should do this in any particular case, it would be unconsti¬ 
tutional: Weston V. Commissioners, 6 O. C. C. 641, 3 O. C. D. 625. 

A city has no constitutional power to include damages to abuttin.g 
owners in . their assessments: Freeman v. Hunter, 7 O. C. C. 117, 3 
O. C. D. 689 [affirmed, without report. Hunter v. Freeman, 51 O. S. 574]. 

n. I’lirpo.se for which asses.smcnf may he levied. The exercise of 
the power of assessment by the city of Cincinnati upon real estate, by 
the front foot, to pay for improving an adjoining street, is not a vio¬ 
lation of the constitution of 1851: Ernst v. Kunkle, 5 O. S. 521. 

Legislation authorizing cities and villages to levy special assess¬ 
ments for the purpose of improving streets, upon real property pecu¬ 
liarly and specially benefited, is not repugnant to the constitution. 
And such assessment may be mad'e upon property abutting on such 
streets, in proportion to the number of feet front abutting thereon: 
Bonsall v. Lebanon, 19 O. 418; Scovill v. Cleveland, 1 O. S. 126; Hill v. 
Higdon, 5 O. S. 243; Marion v. Epler, 5 O. S. 250; Reeves v. Treasurer, 
8 O. S. 333; Foster v. Commissioners, 9 O. S. 540; Railroad v. Connelly, 
10 O. S. 159; Maloy v. Marietta, 11 O. S. 636; Creighton v. Scott, 14 O. S. 
438; State, ex rel., v. Commissioners, 17 O. S. 558. | 

The power to authorize assessments for the construction of free 
turnpike roads, and the opening of drains, as well as for the improve¬ 
ment of streets and sidewalks, exists to the same extent under the 
present constitution as under that of 1802; Reeves v. Treasurer, 8 O. S. 
333. 

I^ands appropriated by a railroad company for its track through a 
city, and crossing the improved street at right angles, and upon which 
the track was constructed after the work had been completed, is liable 
to such assessment. And as between the railroad company and the 
person performing the work (whatever may be the rights of bona fide 
mortgagees of said railroad), the lands so appropriated may be sold to 
pay said assessment; Railroad v. Connelly, 10 O. S. 159. 

If land is appropriated for opening a street, the cost of such appro¬ 
priation can not be assessed back upon the abutting property: Dayton 
V. Bauman, 66 O. S. 379; Railway v. Cincinnati, 62 O. S. 465. 

C. Apportionment. Such assessment need not be levied upon all 
lands on such street, but only on those bounding upon the improvement 
or near thereto: Scovill v. Cleveland, 1 O. S. 126. 

An assessment may be levied by the acre: Foster v. Commission¬ 
ers, 9 O, S. 540. 


Art.XIII, § 6. 




294 


Art.XIII, §6. CONSTITUTION OF THE STATE OF OHIO OF 1851. 


The assessment, whether by the front foot or upon the value 
assessed for taxation, must be uniform, operating alike upon all the 
lots or lands abutting upon the improvement, and the fact that one or 
more of the tracts may not have been benefited by the improvement, 
vdll not render such assessment invalid: Railroad v. Connelly, 10 
O. S. 159. 

Assessments made on the principle of special benefits, without 
reference to frontage, are not unconstitutional: Chamberlain v. Cleve¬ 
land, 34 O. S. 551. 

D. Source of power. The power to authorize assessments as dis¬ 
tinguished from taxes proper, is comprehended in the general grant of 
legislative power to the general assembly: Reeves v. Treasurer, 8 
O. S. 333; Baker v. Cincinnati, 11 O. S. 534. 

VII. BORROWING MONEY, ETC. 

A municipal corporation is without capacity to acquire land by 
purchase for the purpose of donating the same to a corporation or 
person as an inducement to build and operate manufacturing plants 
within the municipality: Markley v. Mineral City, 58 O. S. 430. 

This section of the constitution deals with an existing and inherent 
power in municipalities to borrow money, to contract debts and to levy 
taxes. It does not require, or contemplate, a limitation as to the 
amount of the total indebtedness that may be incurred by a munic¬ 
ipality. Its object is to prevent an abuse of such power, and this may 
be done by restricting the power. The nature and extent of this 
restriction are matters left to the legislature: Cleveland v. Cleveland, 
7 O. N. P. (N.S.) 249, 18 O. D. (N.P.) 619. 

VIII. SPECIFIC ILLUSTRATIONS. 

The statutes, authorizing municipal corporations to assess the cost 
of improving streets upon the lots and lands abutting thereon, in force 
in the year 1853, do not contravene § 6, of Art. XITI, of the constitution 
of 1851: Maloy v. Marietta, 11 O. S. 636. 

For illustrations of. classification and the various holdings thereon, 
see State v. Baughman, 38 O, S. 455; State v. Brewster, 39 O. S. 653; 
Raymond v. Cleveland, 42 O. S. 522; State, ex rel., v. Smith, 44 O. S. 348; 
State V. Hudson, 44 O. S. 137; Platt v. Craig, 66 O. S. 75 [reversing 
State, ex rel., v. Jones, 22 O. C. C. 682, 11 O. C. D. 496]; Carr v. West 
Carrollton, 8 O. C. C. 1, 4 O. C. D. 303; Longworth v. Cincinnati, 17 
O. C. C. 15, 9 O, C. D. 744 [affirmed, without report, Cincinnati v. Long- 
worth, 61 O. S. 659]; State v. Toledo, 13 O. C. D. 327; Shaw v. Jones, 

4 O. N. P. 372, 6 O. D. (N.P.) 453; State, ex rel., v. Pohling, 1 O. C. C. 
486, 1 O. C. D. 271. 

It is impossible that a law of a general nature having a uniform 
operation throughout the state should contain a legal provision sus¬ 
pending its operation in a single city of the state for an indefinite 
time. The provision, therefore, found in § 216, of the municipal code, 
“that any person or persons hereafter appointed pursuant to the pro¬ 
vision of an act entitled, ‘an act relating to market houses in cities of 
the second grade, of the first class,’ passed April 26, 1898, or by what¬ 
ever authority for the purpose provided herein, shall continue to act 
for the purposes for which he or they were appointed, with the powers 
herein granted and no others, until the completion of the improvement 
in connection with which they were appointed,” is in contravention of 
the constitution of the state, and invalid: Slatmyer v. Springborn, 

5 O. C. C. (N.S.) 89, 16 O. C. D. 100 [affirmed, without report, Slatmyer 
V. Springborn, 72 O. S. 683], 

That part of original § 2267 (repealed, 96 v. 96; see § 1536-221) 
which provided that no public improvement, except sidewalks and 
sewers, should be made by cities of the third grade, of the first class, 
until the majority of the owners of the property to be assessed therefor 
had petitioned the council for the improvement, etc., was legislation 
upon a subject of a general nature, and was unconstitutional, because 
it did not have uniform application throughout the state. Hence, where 
a street improvement was made in conformity with the requirements 
of the remaining constitutional provisions of the statute, by a munic¬ 
ipality of the class and grade specially provided for in the unconsti- 
tiHional part above referred to, an assessment to pay the costs thereof 
will not be enjoined merely because the procedure was not in accord¬ 
ance with the requirements of the unconstitutional part: Adkins v. 
Toledo, 6 O. C. C. (N.S.) 433, 17 O. C. D. 417. 

If an improvement was ordered before the supreme court held the 
classification of municipal corporations to be unconstitutional, and such 
proceedings were authorized by statutes relating to such grade and 
class, injunction would not issue to restrain the performance of such 
contract after the change of judicial opinion on the part of the supreme 
court, although under the general statute on the subject of such im¬ 
provements a certificate should have been filed showing that there was 




295 


CONSTITUTION OP THE STATE OP OHIO OP 1851. Art.XIII, § 7. 


money in the treasury for such improvement or in process of collection: 
Columbus V. Bohl, 1 O. N. P. (N.S.) 469, 13 O. D. (N.P.) 569. 

General Code §§ 6594 and 6495, providing- for the improvement of 
ditches in villages, is not unconstitutional because -wanting in “due 
process” in not providing for a jury to assess compensation, for which 
provision is made in other sections of the same chapter, or in not 
limiting the power of taxation and assessment, inasmuch as the con¬ 
stitutional limitation applies to cities and villages, and not to counties: 
McCastin v. Perrysburg, 6 O. N. P, (N.S.) 48, 18 O. D. (N.P.) 196. 

A statute which authorizes a village having within its limits a 
college or university to provide against the evils resulting from the 
sale of intoxicating liquor, was held not to be unconstitutional: 
Bronson v. Oberlin, 41 O. S. 476. 

1 Debates, 260, 447, 458; 2 Debates, 668, 676, 838, 851, 863, 864, 870. 


Section 7. No act of the general assembly, authorizing 
associations with banking powers, shall take effect until it shall 
be submitted to the people, at the general election next suc¬ 
ceeding the passage thereof, and be approved by a majority of 
all the electors, voting at such election. 


Associations with 
banking powers. 


Cited: Bank v. Hines, 3 O. S. 1; State, ex rel., v. Governor, 5 O. S. 
528; Ehrman v. Insurance Co., 35 O. S. 324; State v. Gibbs and Laning, 
7 O. N. P. (N.S.) 345, sub nomine. State v. Laning, 18 O. D. (N.P.) 681. 

This section, as well as the second and third, is prospective and 
not retrospective, in its intent and application: Bank v. Wright, 6 
O. S. 318; State v. Roosa, 11 O. S. 17. 

The advancing of money by a building association to its members, 
as provided in the act of February 21, 1867 (64 v. 18; see G. C. § 9657), 
is not the exercise of banking powers: Building Association v. Gal¬ 
lagher, 25 O. S. 208. 

The phrase “associations with banking powers,” relates only to 
banks of issue: Dearborn v. Savings Bank, 42 O. S. 617 [approved and 
followed in Bates v. Loan Association, 42 O. S. 655]. 

1 Debates, 707, 709; 2 Debates, 20, 344-346, 392-396, 402-424, 795-803, 
806, 819, 820, 824, 850, 851, 864, 870. 


ARTICLE XIV. 

JURISPRUDENCE. 

Section 1. The general assembly, at its first session after Commissioners, 
the adoption of this constitution, shall provide for the appoint¬ 
ment of three commissioners, and prescribe their tenure of 
office, compensation, and the mode of filling vacancies in said 
commission. 

Cited: Louderman v. Judy, 2 O. C. C. 351, 1 O. C. D. 526. 

1 Debates, 338, 551-554; 2 Debates, 331, 838, 864, 870. 


Section 2. The said commissioners shall revise, reform. Their duties, 
simplify, and abridge the practice, pleadings, forms, and pro¬ 
ceedings of the courts of record of this state; and, as far as 
practicable ^nd expedient, shall provide for the abolition of the • 
distinct forms of action at law, now in use, and for the adminis¬ 
tration of justice by a uniform mode of proceeding, without 
reference to any distinction between law and equity. 

Cited: State, ex rel., v. Baldwin, 77 O. S. 532. 

1 Debates, 338, 554-577; 2 Debates, 319-321, 324-326, 331, 838, 864, 870. 


Section 3. The proceedings of the commissioners shall. Their report, 
from time to time, be reported to the general assembly, and be 
subject to the action of that body. 

1 Debates, 338; 2 Debates, 331, 838, 864, 870. 



296 


Art.XV, § 1. 


Seat of govern¬ 
ment. 


Public printing. 


Receipts and 
expenditures. 


Who eligible to 
office. 


CONSTITUTION OF THE STATE OF OHIO OF 1851. 


ARTICLE XV. 

MISCELLANEOUS. 

Section 1 . Columbus shall be the seat of government, 
until otherwise directed by law. (See Const. 1802, Art. VII, 

§ 4.) 

See Const. 1802, Art. VII, § 4. 

Cited by mistake: Jones v. Commissioners, 2 O. C. C. (N.S.) 14. 

1 Debates, 164, 259; 2 Debates, 318, 568, 633, 664, 854, 864, 870. 

Section 2. The printing of the laws, journals, bills, legisla¬ 
tive documents and papers for each branch of the general 
assembly, with the printing required for the executive and other 
departments of state, shall be let, on contract, to the lowest 
responsible bidder, or done directly by the state in such manner 
as shall be prescribed by law. All stationery and supplies shall 
be purchaser as may be provided by law. (Amended September 
3, 1912 ) 

Vote: “Yes,” 319,612; “No,” 192,378. 

Original § 2 read as follows: “Sec. 2. [Public printing.] The 
printing of the laws, journals, bills, legislative documents and papers 
for each branch of the general assembly, with the printing required 
for the executive and other departments of state, shall be let, on con¬ 
tract, to the lowest responsible bidder, by such executive officers, and 
in such manner, as shall be prescribed by law.” 

Cited: Bridge Co. v. Campbell, 60 O. S. 406; Banks v. Manchester, 
128 U. S. 244, 6 O. F. D. 216. 

Referred to as showing that the constitutional requirement that 
contracts must be let to the lowest responsible bidder applies only to 
public printing: Coppin v. Herrmann, 7 O. N. P. 6, 9 O. D. (N.P.) 767. 

A mandamus will not be granted at the suit of the lowest respon¬ 
sible bidder for public printing, to compel the commissioners of printing 
to award him the contract, where a contract has already, by mistake, 
been made with a higher bidder; where the amount of difference 
between the two bids is not shown; where the application has been 
unreasonably delayed, and where no good reason appears why a remedy 
was not sought, by injunction or otherwise, in an action jointly against 
the contractor and the commissioners: State, ex rel., v. Commissioners, 
18 O. S. 386. 

The dividing of printing into separate classes, and the letting by 
separate contracts, with the exception of the seventh class, when the 
printing may be let in portions, is valid: State, ex rel., v. Commission¬ 
ers, 52 O. S. 81. 

1 Debates, 163, 230; 2 Debates, 318, 560, 582, 589, 632, 633, 664 854 
864, 870. 

Section 3. An accurate and detailed statement of the 
receipts and expenditures of the public money, the several 
amounts paid, to whom, and on what account, shall, from time 
to time, be published, as shall be prescribed by law. 

1 Debates, 163, 237-239; 2 Debates, 151, 318, 564-566, 633, 664, 854 
864, 870. 

Section 4. No person shall be elected or appointed to 
any office in this state, unless he possess the qualifications of an 
elector. 

Cited: State, ex rel., v. Ratterman, 58 O. S. 731; Boyd v. Nebraska, 
ex rel., 143 U. S. 135; Burch v. Harte, 1 O. N. P. (N.S.) 477, 14 O. D 
(N.P.) 433. 

This section does not, by implication, forbid the legislature to 
require other reasonable qualifications for office: State, ex rel., v. 
Covington, 29 O. S. 102. 

The place of medical superintendent of a hospital for the insane, 
under the act of 1876 (73 v. 80), is an “office” within the meaning of 
this section: State, ex rel., v. Wilson, 29 O. S. 347. See Art. V. 

The position of trustee of the Ohio state university is an office: 
I'homas v. University, 195 U. S. 207, 14 O. F. D. 433. 



297 


CONSTITUTION OP THE STATE OP OHIO OP 1851. 


The position of supervising judge of the court of common pleas is 
said not to be an office in State, ex rel., v. Hunt, 84 O. S. 143. 

The provisions of the act entitled, “An act to prevent corrupt 
practices at elections” (92 v. 123) are not in conflict with this section: 
Mason v. State, ex rel., 58 O. S. 30. 

The position of notary public is a public office, and by virtue of this 
section a woman can not hold such office: State, ex rel., v. Adams, 
58 O. S. 612. 

The act of 86 v. 221, creating a board of workhouse directors, 
composed of females for the female department, creates an office, and 
this can only be held by electors: State, ex rel., v. Rust, 4 O. C. C. 329, 

2 O. C. D. 577. 

One foreign born, who appeared before a court of record prior to 
reaching the age of twenty-one years and made oath that it was his 
bona fide intention to become a citizen of the United States, and to 
renounce forever all allegiance or fidelity to any foreign prince, poten¬ 
tate, state or sovereign whatsoever, and particularly to Victoria, Queen 
of Great Britain, whose subject he then was, did not thereby become 
a citizen of the United States or entitled to the privileges of an elector 
upon attaining his majority; and where such an one has been elected 
to the office of councilman and has taken his seat, a judgment of 
ouster will be entered against him: State, ex rel., v. Collister, 6 O. C. C. 
(N.S.) 33. 17 O. C. D. 529. 

Deputy supervisors of elections are not officers within the meaning 
of the Ohio constitution: State, ex rel., v. Craig, 8 O. N. P. 148, 10 O. D. 
(N.P.) 577 [affirmed, State, ex rel., v. Craig, 21 O. C. C. 175, 11 O. C. D. 
553], 

The position of deputy clerk of the probate court is not an office 
within the meaning of this section, and a woman may therefore be 
appointed to such position: Warwick v. State, 25 O. S. 21. 

1 Debates, 163, 258; 2 Debates, 318, 567, 633, 664, 854, 864, 870. 

Section 5. No person who shall hereafter fight a duel, 
assist in the same as second, or send, accept, or knowingly 
carry, a challenge therefor, shall hold any office in this state. 

Referred to: Burch v. Harte, 1 O. N. P. (N.S.) 477, 14 O. D. (N.P.) 

433. 

1 Debates, 164, 260-263; 2 Debates, 165, 318, 569, 578, 590, 633, 664, 
854, 864, 870. 

Section 6 . Lotteries, and the sale of lottery tickets, for 
any purpose whatever, shall forever be prohibited in this state. 

Under this section lotteries are rendered invalid; and no statutory 
provisions can render them valid: Simpkins v. Trust Co., 5 O. N. P, 411, 
8 O. D. (N.P.) 510. 

1 Debates, 164, 263; 2 Debates, 318, 569, 633, 664, 854, 864, 870. 

Section 7. Every person chosen or appointed to any office 
under this state, before entering upon the discharge of its duties, 
shall take an oath or affirmation, to support the Constitution of 
the United States, and of this state, and also an oath of office. 
{See Const. 1802 , Art. VII, § i.) 

See Const. 1802, Art. VII, § 1. 

Cited: State, ex rel., v. Brennan, 49 O. S. 33: State, ex rel., v. Hunt, 
84 O. S. 143; State, ex rel., v. Mackelfresh, 5 O. N. P. (N.S.) 43, 17 O. D. 
(N.P.) 709. 

All officers should take the oath required by the constitution, 
whether the law under which they hold office prescribe this duty or 
not The injunctions of the constitution in this respect are as obli¬ 
gatory as those of a statute could be: State, ex rel., v. Kennon, 7 

^ 1 Debates, 163, 293; 2 Debates, 318, 634, 664, 854, 864, 870. 

See § 18, Schedule. 

Section 8 . There may be established, in the secretary of 
state’s office, a bureau of statistics, under such regulations as 
may be prescribed by law. 

2 Debates, 293, 755, 756, 854, 864, 870. 


Art.XV, § 5. 


Duelists inelig¬ 
ible. 


Lotteries. 


Oath of officers. 


Bureau of statis¬ 
tics. 



298 


Art.XV, § 9. 


License to traffic 
in intoxicating 
liquors. 


(CONSTITUTION OF THE STATE OF OHIO OF 1851. 


Section 9, License to traffic in intoxicating liquors shall be 
granted in this state, and license laws operative throughout the 
state shall be passed with such restrictions and regulations as 
may be provided by law, and municipal corporations shall be 
authorized by general laws to provide for the limitation of the 
number of saloons. Laws shall not be passed authorizing more 
than one saloon in each township or municipality of less than 
five hundred population, or more than one saloon for each five 
hundred population in other townships and municipalities. 
Where the traffic is or may be prohibited under laws applying 
to counties, municipalities, townships, residence districts, or 
other districts now prescribed by law, the traffic shall not be 
licensed in any such local subdivision while any prohibitory law 
is operative therein, and nothing herein contained shall be so 
construed as to repeal, modify or suspend any such prohibitory 
laws, or any regulatory laws now in force or hereafter enacted, 
or to prevent the future enactment, modification or repeal of any 
prohibitory or regulatory laws. License to traffic in intoxicating 
liquors shall not be granted to any person who at the time of 
making application therefor is not a citizen of the LTnited States 
and of good moral character. License shall not be granted to 
any applicant who is in any way interested in the business 
conducted at any other place where intoxicating liquors are sold 
or kept for sale as a beverage nor shall such license be granted 
unless the applicant or applicants are the only persons in any 
way pecuniarily interested in the business for which the license 
is sought and no other person shall be in any way interested 
therein during the continuance of the license; if such interest of 
such person shall appear, the license shall be deemed revoked. 
If any licensee is more than once convicted for a violation of 
the laws in force to regulate the traffic in intoxicating liquors, 
his license shall be deemed revoked, and no license shall there¬ 
after be granted to him. License to traffic in intoxicating liquors 
shall not be granted unless the place of traffic under such license 
shall be located in the county in which the person or persons 
reside whose duty it is to grant such license, or in a county 
adjoining thereto. The word “saloon” as used in this section is 
defined to be a place where intoxicating liquors are sold, or 
kept for sale, as a beverage in quantities less than one gallon. 


INTOXICATING LIQUORS. 



For License to traffic in intoxicating liquors. 


Against License to traffic in intoxicating liquors. 


The voter shall indicate his choice by placing a cross-mark 
within the blank space opposite the words “For License,” if he 
desires to vote in favor of the article above mentioned and 
opposite the words “Against License,” within the blank space 
if he desires to vote against said article. If a cross-mark is 







298a 


CONSTITUTION OP THE STATE OP OHIO OP 1851. 


placed opposite both phrases or neither phrase, then the vote 
upon the subject shall not be counted. 

If the votes for license shall exceed the votes against license, 
then the article above mentioned shall become section 9 of 
article XV of the constitution, and the present section 9 of said 
article, also known as section 18 of the schedule shall be re¬ 
pealed. (As amended September 3 , 1912 .) 

Vote: “For.” 273,361; “Against,” 188,825. 

Original § 9 read as follows: “No license to traffic in intoxicating 
liquors shall hereafter be granted in this state; but the general 
assembly may by law, provide against evils resulting therefrom.” [See 
schedule to constitution of 1851, § 18.] 

Section 10. Appointments and promotions in the civil 
service of the state, the several counties, and cities, shall be made 
according to merit and fitness, to be ascertained, as far as prac¬ 
ticable, by competitive examinations. Laws shall be passed pro¬ 
viding for the enforcement of this provision. (Adopted 
September 3 , 1912 .) 

Vote: “Yes,” 306,767; “No,” 204,580. 


ARTICLE XVI. 

AMENDMENTS. 

Section 1. Either branch of the general assembly may pro¬ 
pose amendments to this constitution; and, if the same shall oe 
agreed to by three-fifths of the members elected to each house, 
such proposed amendments shall be entered on the journals, 
with the yeas and nays, and shall be submitted to the electors, 
for their approval or rejection, on a separate ballot without party 
designation of any kind, at either a special or a general election 
as the general assembly may prescribe. Such proposed amend¬ 
ments shall be published once a week for five consecutive weeks 
preceding such election, in at least one newspaper in each county 
of the state, where a newspaper is published. If the majority 
of the electors voting on the same shall adopt such amendments 
the same shall become a part of the constitution. When more 
than one amendment shall be submitted at the same time, they 
shall be so submitted as to enable the electors to vote on each 
amendment, separately. (As amended September 3 , 1912 .) 

Vote: “Yes,” 271,827; “No,” 246,687. 

Original § 1 read as follows: “Sec. 1. [This constitution be amended, 
and how.] Either branch of the general assembly may propose amend¬ 
ments to this constitution; and, if the same shall be agreed to by 
three-fifths of the members elected to each house, such proposed 
amendments shall be entered on the journals, with the yeas and nays, 
and shall be published in at least one newspaper in each county of 
the state, where a newspaper is published, for six months preceding 
the next election for senators and representatives, at which time the 
same shall be submitted to the electors, for their approval or rejection; 
and if a majority of the electors, voting at such election, shall adopt 
such amendments, the same shall become a part of the constitution. 
When more than one amendment shall be submitted at the same time, 
they shall be so submitted as to enable the electors to vote on each 
amendment, separately.” 

An amendment to the constitution, submitted by the legislature 
under the provisions of this section of that instrument, requires, for its 
adoption, a majority of all the votes cast at the election for senators 
and representatives at which it is submitted to the electors of the 
state for their approval or rejection: State, ex rel., v. Foraker, 46 
O. S. 677. 


Art.XV, § 10. 


Civil service. 


This constitution 
be amended, and 
how. 




298b 


Art.XVI, § 2. 


Same subject. 


CONSTITIJTTOX OF THE STATE OF OHIO OF 1851. 


In the constitution of this state there is no limitation upon the 
legislative power to provide by general laws the manner of submitting 
to a vote of the people a proposed amendment to the constitution, 
except that when there is more than one amendment to be submitted 
they shall be so submitted that the elector shall be enabled to vote 
separately on each. This does not mean that each amendment must 
be upon a separate ballot or be deposited in a sepai-ate ballot box, nor 
that each or all of the proposed amendments may not be voted for on 
ballots on which are the names of candidates for office who are voted 
for by the elector. It merely requires that the elector shall be 
“enabled” to record his vote upon each amendment separately if he 
so desires: that is, that he may vote for one or more and against one 
or more at the same time if he chooses so to do. If, being so enabled, 
he chooses not to vote at all upon any or all of the amendments, such 
failure to vote necessarily operates as a negative vote, because amend¬ 
ments to the constitution must be adopted by a majority of all the 
votes cast at the election. It was not the design or intention of the 
constitution to put a premium on ignorance or indifferentism at the 
same time that it is the duty of every citizen to inform himself and 
to vote upon every matter submitted to a vote of the people. Out of 
the proposition that a constitution adopted by the people can be 
amended only by a majority of ih? people, it naturally follows that of 
all the people voting at an election when an amendment to the con¬ 
stitution is submitted, only those should be counted for the amendment 
who expressly so vote, and this is the whole scope of Art. XVI, § 1, of 
the constitution of Ohio: State, ex rel., v. Laylin, 69 O. S. 1. 

The act of the general assembly entitled, “An act to provide for 
che manner of submission of constitutional amendments and other 
questions to a vote of the people,” passed May 2, 1902 (95 v. 352), 
enables the elector to vote with or against his party, on each or all of 
the amendments, or to vote separately upon each and every proposed 
amendment, or to not vote at all if he so desires. So far as we have 
been able to discover, the act is not in any respect in conflict with the 
constitution, and not irreconcilably in conflict with the joint resolu¬ 
tions adopted by the general assembly submitting propositions to 
amend the constitution: State, ex rel., v. Laylin, 69 O. S. 1. 

2 Debates, 339, 427, 428, 434, 436, 446, 811, 839, 864, 870. 

Section 2. Whenever two-thirds of the members elected to 
each branch of the general assembly shall think it necessary to 
call a convention, to revise, amend, or change this constitution, 
they shall recommend to the electors to vote on a separate ballot 
without party designation of any kind at the next election for 
members to the general assembly, for or against a convention; 
and if a majority of all the electors, voting for and against the 
calling of a convention, shall have voted for a convention, the 
general assembly shall, at their next session, provide, by law, 
for calling the same. Candidates for members of the constitu¬ 
tional convention shall be nominated by nominating petitions 
only and shall be voted for upon one independent and separate 
ballot without any emblem or party designation whatever. The 
convention shall consist of as many members as the house of 
representatives, who shall be chosen as provided by law, and 
shall meet within three months after their election, for the pur¬ 
pose, aforesaid. (As amended September 3 , 1912 .) 

Vote: “Yes,” 271,827; “No,” 246,687. 

Original § 2 read as follows: “Sec. 2. [Same subject.] Whenever 
two-thirds of the members elected to each branch of the general assem¬ 
bly, shall think it necessary to call a convention, to revise, amend, <■ 
change this constitution, they shall recommend to the electors to vote, 
at the next election for members to the general assembly, for or against 
a convention; and if a majority of all the electors, voting at said 
election, shall have voted for a convention, the general assembly shall, 
at their next session, provide, by law, for calling the same. The con¬ 
vention shall consist of as many members as the house of representa¬ 
tives, who shall be chosen in the same manner, and shall meet within 
three months after their election, for the purpose, aforesaid. (See 
Const. 1802, Art. VII, § 5.)” 

See Const. 1802, Art. VII, § 5; 2 Debates, 339, 428, 429, 434, 436, 446, 
811, 839, 864, 870. 




299 


CONSTITUTION OF THE STATE OF OHIO OF 1851 . 


Section 3. At the general election to be held in the year 
one thousand nine hundred and thirty-two, and in each twentieth 
year thereafter, the question: “Shall there be a convention to 
revise, alter, or amend the constitution,” shall be submitted to 
the electors of the state; and in case a majority of the electors, 
voting for and against the calling of a convention, shall decide 
in favor of a convention, the general assembly, at its next ses¬ 
sion, shall provide, by law, for the election of delegates, and the 
assembling of such convention, as is provided in the preceding 
section; but no amendment of this constitution, agreed upon by 
any convention assembled in pursuance of this article, shall take 
effect, until the same shall have been submitted to the electors 
of the state, and adopted by a majority of those voting thereon. 
(As amended September 3, 1912.) 

Vote: “Yes,” 271,827; “No,” 246,687. 

Original § 3 read as follows: “Sec. 3. [Same subject.] At the gen¬ 
eral election, to be held in the year one thousand eight hundred and 
seventy-one, and in each twentieth year thereafter, the question: ‘Shall 
there be a convention to revise, alter, or amend the constitution,’ shall be 
submitted to the electors of the state; and, in case a majority of all the 
electors, voting at such election, shall decide in favor of a convention, 
the general assembly, at its next session, shall provide, by law, for the 
election of delegates, and the assembling of such convention, as is pro¬ 
vided in the preceding section; but no amendment of this constitution, 
agreed upon by any convention assembled in pursuance of this article, 
shall take effect, until the same shall have been submitted to the 
electors of the state, and adopted by a majority of those voting 
thereon.” 

Cited: State, ex rel., v. Foraker, 46 O. S. 677. 


In pursuance of this section, as originally enacted, the question 
“shall there be a convention to revise, alter, or amend the Constitution,” 
was submitted to the electors on the 10th day of October, 1871, resulting 
in favor of the convention by the following vote: 


Whole number of electors voting at said election.. 459,990 
Whole number of electors voting in favor of the 

convention . 264,970 

Whole number of electors voting against the con¬ 
vention . 104,231 


The convention which met on the 13th day of May, 1873 and re¬ 
mained in session one hundred and eighty-six days, submitted a new 
Constitution to a vote of the people on the 18th day of August, 1874, 
which failed of adoption, the following statement showing the vote 
thereon: 


Against new Constitution .^. 250,169 

For new Constitution .‘. 102,885 

Majority against new Constitution. 147,284 


In pursuance of this section the question “shall there be a conven¬ 
tion to revise, alter or amend the Constitution,” was submitted to the 
electors on the 3rd day of November, 1891, resulting adversely to the 


convention by the following vote: 

Whole number of electors voting at said election... 803,328 
Whole number of electors voting in favor of the 

convention . 99,784 

Whole number of electors voting against the con¬ 
vention . 161,722 


In pursuance of this section, the question “shall there be a con¬ 
vention to revise, alter or amend the Constitution,” was submitted to 
the electors on the 8th day of November, 1910, resulting in favor of 


the convention by the following vote: 

Whole number of electors voting at said election.. 932,262 
Whole number of electors voting in favor of the 

convention . 693,263 

Whole number of electors voting against the con¬ 
vention . 161,722 


Art.XVI, § 3. 


Same subject. 













300 


Art.XVI, § 3 


CONSTITUTION OF THE STATE OF OHIO OF 1851. 


Pursuant to the foregoing vote, the members of the constitutional 
convention were elected November 7th, 1911. The convention met 
January 9, 1912, and remained in session 83 days, adjourning from 
June 7th to August 26, 1912, at which date it adjourned sine die. It 
submitted forty-one amendments, numbered consecutively, including a 
schedule of amendments; and in addition thereto a separate proposi¬ 
tion for and against a license to traffic in intoxicating liquors; to the 
electors of the state at a special election held September 3, 1912. 

The official numbers of the amendments, the official designations 
of the amendments, and the vote upon each amendment thus pro¬ 
posed were as follows: 

Amendment No. 1. Article I, § 5: “Reform in Civil Jury System.” 
Vote: “Yes,” 345,686; “No,” 203,953. 

Amendment No. 2. Article I, §9: “Abolition of Capital Punish¬ 
ment.” Vote: “Yes,” 258,706; “No,” 303,246. 

Amendment No. 3. Article I, § 10: “Deposition by State and Com¬ 
ment on Failure of Accused to Testify in Criminal Cases.” Vote: “Yes,” 
291,717; “No,” 227,547. 

Amendment No. 4. Article I, § 16: “Suits Against the State.” Vote; 
“Yes,” 306,764; “No,” 216,634.' 

Amendment No. 5. Article I, § 19a: “Damage for Wrongful Death.” 
Vote: “Yes,” 355,605; “No,” 195,216. 

Amendment No. 6. Article II, §§ 1, la, lb, Ic, Id, le, If, Ig: “Initia¬ 
tive and Referendum.” Vote: “Yes,” 312,592; “No,” 231,312. 

Amendment No. 7. Article II, § 8: “Investigations by each House of 
General Assembly.” Vote; “Yes,” 348,779; “No,” 175,337. 

Amendment No. 8. Article II, § 16: “Limiting Veto Power of Gov¬ 
ernor.” Vote: “Yes,” 282,412; “No,” 254,186. 

Amendment No. 9. Article II, § 33: “Mechanics’ and Builders’ Liens.” 
Vote; “Yes,” 278,582; “No,” 242,385. 

Amendment No. 10. Article II, § 34: “Welfare of Employes.” Vote: 
“Yes,” 353,588; “No,” 189,728. 

Amendment No. 11. Article II, § 35; “Workmen’s Compensation.” 
Vote; “Yes,” 321,558: “No,” 211,772. 

Amendment No. 12. Article II, § 36: “Conservation of Natural Re¬ 
sources.” Vote: “Yes,” 218,192; “No,” 191,893. 

Amendment No. 13. Article II, § 37: “Eight Hour Day on Public 
Work.” Vote: “Yes,” 333,307; “No,” 232,898. 

Amendment No. 14. Article H, § 38: “Removal of Officials.” Vote: 
“Yes,” 347,333; “No,” 185,986. 

Amendment No. 15. Article H, § 39: “Regulating Expert Testimony 
in Criminal Trials.” Vote: “Yes,” 336,987; “No,” 185,458. 

Amendment No. 16. Article H, § 40: “Registering and Warranting 
Land Titles.” Vote: “Yes,” 346,373; “No,” 171,807. 

Amendment No. 17. Article H, § 41: “Abolishing Prison Contract 
Labor.” Vote: “Yes,” 333,034; “No,” 215,208. 

Amendment No. 18. Article HI, § 8: “Limiting Power of General As¬ 
sembly in Extra Sessions.” Vote: “Yes,” 319,100; “No,” 192,130. 

Amendment No. 19. Article IV, §§ 1, 2 and 6: “Change in Judicial 
System.” Vote: “Yes,” 264,922; “No,” 244,375. 

Amendment No. 20. Article IV, §§ 3, 7, 12 and 15: “Judge of Court 
of Common Pleas for each County.” Vote: “Yes,” 301,891; “No,” 223,287. 

Amendment No. 21. Article IV, §9: “Abolition of Justices of the 
Peace in Certain Cities.” Vote: “Yes,” 264,832; “No,” 252,936. 

Amendment No. 22. Article IV, § 21: “Contempt Proceedings and 
Injunctions.” Vote: “Yes,” 240,896; “No,” 257,302. 

Amendment No. 23. Article V, § 1: “Woman’s Suffrage.” Vote: 

“Yes,” 249,420; “No,” 336,875. 

Amendment No. 24. Article V, § 1: “Omitting word ‘White.’” Vote; 
“Yes,” 242,735; “No,” 265,693. 

Amendment No. 25. Article V, § 2: “Use of Voting Machines.” 

Vote: “Yes,” 242,342; “No,” 288,652. 

Amendment No. 26. Article V, §7: “Primary Elections.” Vote: 

“Yes,” 349,801; “No,” 183,112. 

Amendment No. 27. Article VI, § 3: “Organization of Boards of 

Education.” Vote; “Yes,” 298,460; “No,” 213,337. 

Amendment No. 28. Article VI, § 4: “Creating the Office of Super¬ 
intendent of Public Instruction to Replace State Commissioner of 
Common Schools.” Vote: “Yes,” 256,615; “No,” 251,946. 

Amendment No. 29. Article VHI, § 1: “To Extend State Bond Limit 
to Fifty Million Dollars for Inter-county Wagon Roads.” Vote: “Yes,” 
272,564; “No,” 274,582. 

Amendment No. 30. Article VHI, § 6: “Regulating Insurance.” 
Vote: “Yes, 321,388; “No,” 196,628. 

Amendment No. 31. Article VHI, § 12: “Abolishing Board of Public 
Works.” Vote: “Yes,” 296,635; “No,” 214,829. 



300a 

CONSTITUTION OF THE STATE OF OHIO OF 1851. 


Amendment No. 32. Article XII, §§ 1, 2, 6, 7, 8, 9, 10 and 11; “Taxa¬ 
tion of State and Municipal Bonds, Inheritances, Incomes, Franchises 
and Production of Minerals.” Vote: “Yes,” 269,039; “No,” 249,864. 

Amendment No. 33. Article XIII, §2: “Regulation of Corporations 
and Sale of Personal Property.” Vote: “Yes,” 300,466; “No,” 212,704. 

Amendment No. 34. Article XIII, §3: “Double Liability of Bank 
Stockholders and Inspection of Private Banks.” Vote: “Yes,” 377,272; 
“No,” 156,688. 

Amendment No. 35. Article XV, §2: “Regulating State Printing.” 
Vote: “Yes,” 319,612; “No,” 192,378. 

Amendment No. 36. Article XV, §4: “Eligibility of Women to 
Certain Offices.” Vote; “Yes,” 261,806; “No,” 284,370. 

Amendment No. 37. Article XV, § 10; “Civil Service.” Vote: “Yes,” 
306,767; “No,” 204,580. 

Amendment No. 38. Article XV § 11 “Out-Door Advertising.” Vote* 
“Yes,” 261,361; “No,” 262,440. 

Amendment No. 39. Article XVI, §§ 1, 2, and 3: “Methods of Sub¬ 
mitting Amendments to the Constitution.” Vote: “Yes,” 271 827- 
“No,” 246,687. 

Amendment No. 40. Article XVIII, §§ 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 
12, 13 and 14; “Municipal Home Rule.” Vote: “Yes,” 301,861; “No” 
215,120. 

Amendment No. 41. “Schedule of Amendments.” Vote: “Yes,” 
275,062; “No,” 213,979. 

2 Debates, 339, 429-436, 446, 811, 839, 864, 870. 


ARTICLE XVH. 

ELECTIONS. 

Section 1 . Elections for state and county officers shall 
be held on the first Tuesday after the first Monday in No¬ 
vember in the even numbered years; and all elections for all 
other elective officers shall be held on the first Tuesday after the 
first Monday in November in the odd numbered years. [As 
adopted November 7 , 1905 : 97 v. 640 .] 

(As adopted November 7, 1905; 97 v. 640.) 

The vote adopting this amendment was “Yes,” 702,699; “No,” 90,762. 

Cited: State, ex rel., v. Mulhern, 74 O. S. 363; Holbrock v. Smedley, 
7 j O. S. 391; State, ex rel., v. Morrow, 11 O. C. C. (N.S.) 107, 20 O. C. D. 
423 [affirmed, without report. State, ex rel., v. Morrow, 78 O. S. 452]. 

The object of the constitutional amendment. Art. XVII, and of the 
act of April 16, 1906 (98 v. 271), passed pursuant thereto, was the con¬ 
tinuance in office of the incumbents, during the interregnum occasioned 
thereby, and a sheriff whose term of office was extended under the act 
IS not ineligible, under § 3, of Art. X, of the constitution, to succeed 
himself for another term: State, ex rel., v. Pontius, 78 O. S. 353. 

The express provisions of the constitution of the state establish 
such relation between the election of state officers and the convening 
of the general assembly that since Art. VII, adopted in 1905, has 
expressly changed the date of the election from November of the odd 
numbered years to the same month of the even numbered years, the 
provision for the convening of the regular session of the general 
assembly then elected must be regarded as changed by implication 
from the first Monday of January, in the even numbered years to the 
first Monday of the same month in the odd numbered years: State, 
ex rel., v. Creamer, 83 O. S. 412. 

The general provisions of the constitution do not limit conflicting 
provisions of an amendment to the constitution that are specific and 
temporary. Section 3, Art. X, of the constitution, that “No person shall 
be eligible to the office of sheriff, or county treasurer, for more than 
four years in any period of six years,” is not applicable to the act 
entitled, “An act to conform the terms of office of various state and 
county officers to the constitutional provisions of [relating to] biennial 
elections” (98 v. 271): State, ex rel., v. Harris, 77 O. S. 481. 

Section 2. The term of office of the governor, lieutenant 
governor, attorney-general, secretary of state and treasurer of 
state shall be two years, and that of the auditor of state shall be 


Art.XVII, § 1. 


Time for hold¬ 
ing. 


Terms of officers, 
vacancies, etc. 




300 b 

Art. XVII, § 2 . CONSTITUTION OF THE STATE OF OHIO OF 1851 . 


Present 

bents. 


four years. The term of office of judges of the supreme court and 
circuit courts shall be such even number of years not less than 
six (6) years as may be prescribed by the general assembly; 
that of the judges of the common pleas court six (6) years 
and of the judges of the probate court, four (4) years, and that 
of other judges shall be such even number of years not ex¬ 
ceeding six (6) years as may be prescribed by the general 
assembly. The term of office of justices of the peace shall be 
such even number of years not exceeding four (4) years, as may 
be prescribed by the general assembly. The term of office of the 
members of the board of public works shall be such even num¬ 
ber of years not exceeding six (6) years as may be so pre¬ 
scribed; and the term of office of all elective county, township, 
municipal and school officers shall be such even number of 
years not exceeding four (4) years as may be so prescribed. 

And the general assembly shall have power to so extend 
existing terms of office as to affect the purpose of section i 
of this article. ^ 

Any vacancy which may occur in any elective state office 
other than that of a member of the general assembly or of 
governor, shall be filled by appointment by the governor until 
the disability is removed, or a successor elected and qualified. 
Every such vacancy shall be filled by election at the first general 
election for the office which is vacant, that occurs more than 
thirty (30) days after the vacancy shall have occurred. The 
person elected shall fill the office for the unexpired term. All 
vacancies in other elective offices shall be filled for the un¬ 
expired term in such manner as may be prescribed by law. 
[As adopted November 7, 1905: 97 v. 641.] 

(As adopted November 7, 1905; 97 v. 641). 

The vote adopting this amendment was “Yes,” 702,699; “No,” 90,762. 

Cited: State, ex rel., v. Mnlhern, 74 O. S. 363; State, ex rel, v. 
Morrow, 11 O, C. C. (N.S.) 107, 20 O. C. D. 422 [affirmed, without report. 
State, ex rel., v. Morrow, 78 O. S. 452]; State, ex rel., v. Metcalfe, 80 
O. S. 244. 

Section 7, of Art. IV, of the constitution, was in force as to all of 
its provisions until the close of the election on November 7, 1905, and 
a person who was elected on that day to succeed himself as probate 
judge was elected for the term of three years from and after the 
expiration of the term which he was already holding: State, ex rel., 
V. Pattison, 73 O. S. 305. 

Section 2 of the amendment to the constitution which is now 
designated as Art. XVII, providing that the term of office of a probate 
judge shall be four years, applies only to such persons as shall be 
elected to such office as provided in § 1 of such amendment. Said 
amendment is not retroactive. Terms of office existing at and before 
the adoption of the amendment are not restricted or abolished thereby, 
but existing terms of office may be extended by the general assembly 
so as to effect the purpose of § 1 of the amendment. The phrase 
“existing terms of office” means the terms of office as defined in the 
constitution and acts of the general assembly as they existed at the* 
time of the proposal of the amendment and of its adoption: State, 
ex rel., v. Pattison, 73 O. S. 305. 


incum- SECTION 3. Every elective officer holding office when 

this amendment is adopted, shall continue to hold such office for 
the full term for which he was elected, and until his successor 
shall be elected and qualified as provided by law. [As adopted 
November 7, 1905: 97 v. 641.] 

(As adopted November 7, 1905; 97 v. 641). 

The vote adopting this amendment was “Yes,” 702,699; “No,” 90,762. 

Cited: State, ex rel., v. Mackelfresh, 9 O. C. C. (N.S.) 324, 19 



301 

CONSTITUTION OF THE STATE OP OHIO OP 1851 . Art.XVIII, § 1. 


O. C. D. 499; State, ex rel., v. Morrow, 11 O. C. C. (N.S.) 107, 20 O. C. D. 
422 [affirmed, without report. State, ex rel., v. Morrow, 78 O. S. 452]. 

Article XVIT, of the constitution, adopted November 7, 1905, does 
not expressly repeal or abrogate § 13, of Art. IV, of the constitution, 
nor is it in conflict therewith; and, applying to the construction of 
the former section the established rule that repeals by implication are 
not favored, it follows that the clause of § 13 which provides that where 
“the office of any judge becomes vacant before the expiration of the 
regular term for which he was elected, the vacancy shall be filled by 
appointment by the governor until a successor is elected and qualified,” 
remains in force: State, ex rel., v. Metcalfe, 80 O. S. 244. 

Where, by the provisions of Art. XVII, of the constitution, the 
term of an officer in office at the adoption of said article is extended 
until a successor is elected and qualified, the period between the 
expiration of his original term and the election and qualification of his 
successor is as much a part of the incumbent’s term of office as the 
fixed statutory period: State, ex rel., v. Metcalfe, 80 O. S. 244. 

This section was not adopted until the close of election on Novem¬ 
ber 7, 1905: State, ex rel., v. Pattison, 73 O. S. 305. 

ARTICLE XVIII. 

MUNICIPAL CORPORATIONS. 

Section 1. Municipal corporation.s are hereby classified 
into cities and villages. All such corporations having a popula- 
ton of five thousand or over shall be cities; all others shall be 
villages. The method of transition from one class to the other 
shall be regulated by law. (Adopted September 3, 1912.) 

Vote; “Yes,” 301,861; “No,” 215,120. 

Section 2. General laws shall be passed to provide for the 
incorporation and government of cities and villages; and addi¬ 
tional laws may also be passed for the government of municipali¬ 
ties adopting the same; but no such additional law shall become 
operative in any municipality until it shall have been submitted 
■ to the electors thereof, and affirmed by a majority of those 
voting thereon, under regulations to be established by law. 
' (Adopted September 3, 1912.) 

Vote; “Yes,” 301,861; “No,” 215,120. 

* 

Section 3 . Municipalities shall have authority to exercise 
all powers of local self-government and to adopt and enforce 
within their limits such local police, sanitary and other similar 
regulations, as are not in conflict with general laws. (Adopted 
September 3, 1912.) 

Vote: “Yes,” 301,861; “No,” 215,120. 

Section 4. Any municipality may acquire, construct, own, 
lease and operate within or without its corporate limits, any 
public utility the product or service of which is or is to be 
supplied to the municipality or its inhabitants, and may con¬ 
tract with others-for any such product or service. The acquisi¬ 
tion of any such public utility may be by condemnation or 
otherwise, and a municipality may acquire thereby the use of, or 
full title to, the property and franchise of any company or 
person supplying to the municipality or its inhabitants the service 
or product of any such utility. (Adopted September 3, 1912.) 

Vote: “Yes,” 301,861; “No,” 215,120. 

Section 5. Any municipality proceeding to acquire, con¬ 
struct, own, lease or operate a public utility, or to contract 
with any person or company therefor, shall act by ordinance 
and no such ordinance shall take effect until after thirty days 


[Classification.] 


[General and 
additional laws.] 


[Powers.] 


[Public utilities.] 


[Public utilities.] 



301 a 


Art.XVIII, § 5. 


[Public utilities.] 


[Home rule.] 


[Home rule.] 


CONSTITUTION OP THE STATE OF OHIO OP 1851 . 


from its passage. If within said thirty days a petition signed 
by ten per centum of the electors of the municipality shall be 
filed with the executive authority thereof demanding a ref¬ 
erendum on such ordinance it shall not take efifect until sub¬ 
mitted to the electors and approved by a majority of those 
voting thereon. The submission of any such question shall be 
governed by all the provisions of section 8 of this article as to 
the submission of the question of choosing a charter commis¬ 
sion. (Adopted September 3, 1912.) 

Vote: “Yes,” 301,861; “No,” 215,120. 

Section 6 . Any municipality, owning or operating a public 
utility for the purpose of supplying the service or product 
thereof to the municipality or its inhabitants, may also sell and 
deliver to others any transportation service of such utility and 
the surplus product of any other utility in an amount not ex¬ 
ceeding in either case fifty per centum of the total service or 
product supplied by such utility within the municipality. 
(Adopted September 3, 1912.) 

Vote: “Yes,” 301,861; “No,” 215,120. 

Section 7. Any municipality may frame and adopt or 
amend a charter for its government and may, subject to the 
provisions of section 3 of this article, exercise thereunder all 
powers of local self-government. (Adopted September 3, 1912.) 

Vote: “Yes,” 301,861; “No,” 215,120. 

Section 8 . The legislative authority of any city or village 
may by a two-thirds vote of its members, and upon petition of 
ten per centum of the electors shall forthwith, provide by ordi¬ 
nance for the submission to the electors, of the question, “Shall 
a commission be chosen to frame a charter.” The ordinance 
providing for the submission of such question shall require that 
it be submitted to the electors at the next regular mumcipal elec¬ 
tion if one shall occur not less than sixty nor more than one 
hundred and twenty days after its passage; otherwise it shall 
provide for the submission of the question at a special election 
to be called and held within the time aforesaid. The ballot 
containing such question shall bear no party designation, and 
provision shall be made thereon for the election from the munic¬ 
ipality at large of fifteen electors who shall constitute a com¬ 
mission to frame a charter; provided that a majority of the 
electors voting on such question shall have voted in the affirma¬ 
tive. Any charter so framed shall be submitted to the electors 
of the municipality at an election to be held at a time fixed 
by the charter commission and within one year from the date 
of its election, provision for which shall be made by the legis¬ 
lative authority of the municipality in so far as not prescribed 
by general law. Not less than thirty days prior to such election 
the clerk of the municipality shall mail a copy of the proposed 
charter to each elector whose name appears upon the poll or 
registration books of the last regular or general election held 
therein. If such proposed charter is approved by a majority of 
the electors voting thereon, it shall become the charter of such 
municipality at the time fixed therein. (Adopted September 
3. 1912.) 

Vote: “Yes,” 301,861; “No,” 215,120. 



301b 


CONSTITUTION OP THE STATE OF OHIO OF 1851 . 


Section 9 . Amendments to any charter framed and adopted 
as herein provided may be submitted to the electors of a mu¬ 
nicipality by a two-thirds vote of the legislative authority thereof, 
and, upon petitions signed by ten per centum of the electors of 
the municipality setting forth any such proposed amendment, 
shall be submitted by such legislative authority. The submis¬ 
sion of proposed amendments to the electors shall be governed 
by the requirements of section 8 as to the submission of the 
question of choosing a charter commission; and copies of pro¬ 
posed amendments shall be mailed to the electors as hereinbefore 
provided for copies of a proposed charter. If any such amend¬ 
ment is approved by a majority of the electors voting thereon, 
it shall become a part of the charter of the municipality. A 
copy of said charter or any amendment thereto shall be certified 
to the secretary of state, within thirty days after adoption by a 
referendum vote. (Adopted September 3, 1912.) 

Vote: "Yes,” 301,861; "No,” 215,120. 

Section 10. A municipality appropriating or otherwise ac¬ 
quiring property for public use may in furtherance of such 
public use appropriate or acquire an excess over that actually 
to be occupied by the improvement, and may sell such excess 
with such restrictions as shall be appropriate to preserve the im¬ 
provement made. Bonds may be issued to supply the funds in 
whole or in part to pay for the excess property so appropriated 
or otherwise acquired, but said bonds shall be a lien only against 
the property so acquired for the improvement and excess, and 
they shall not be a liability of the municipality nor be included 
in any limitation of the bonded indebtedness of such municipality 
prescribed by law. (Adopted September 3, 1912.) 

Vote: "Yes,” 301,861; "No,” 215,120. 

Section 11, Any municipality appropriating private prop¬ 
erty for a public improvement may provide money therefore in 
part by assessments upon benefited property not in excess of the 
special benefits conferred upon such property by the improve¬ 
ments. Said assessments, however, upon all the abutting, ad¬ 
jacent, and other property in the district benefited shall in no 
case be levied for more than fifty per centum of the cost of 
such appropriation. (Adopted September 3, 1912.) 

Vote: "Yes,” 301,861; "No,” 215’,120. 

Section 12. Any municipality which acquires, constructs 
or extends any public utility and desires to raise money for such 
purposes may issue mortgage bonds therefor beyond the general 
limit of bonded indebtedness prescribed by law; provided that 
such mortgage bonds issued beyond the general limit of bonded 
indebtedness prescribed by law shall not impose any liability upon 
such municipality but shall be secured only upon the property 
and revenues of such public utility, including a franchise stating 
the terms upon which, in case of foreclosure, the purchaser may 
operate the same, which franchise shall in no case extend for a 
longer period than twenty years from the date of the sale of 
such utility and franchise on foreclosure. (Adopted September 
3 . 1912.) 

Vote: "Yes,” 301,861; "No,” 215,120. 

[Vol. VII—11] 


Art.XVIII, § 9. 


[Home rule.] 


[Appropriation in 
excess of public 
use.] 


[Assessments for 
cost of appropri¬ 
ating property.] 


[Bonds for public 
utilities.] 



302 


Art.XVin,§13. 


[Taxation, debts, 
reports and 
accounts.] 


[Elections.] 


Of prior laws. 


CONSTITUTION OF THE STATE OF OHIO OF 1851 . 


Section 13. Laws may be passed to limit the power of 
municipalities to levy taxes and incur debts for local purposes, 
and may require reports from municipalities as to their financial 
condition and transactions, in such form as may be provided by 
law, and may provide for the examination of the vouchers, books 
and accounts of all municipal authorities, or of public under¬ 
takings conducted by such authorities. (Adopted September 3, 
1912.) 

Vote: “Yes,” 301,861; “No,” 215,120. 

Section 14. All elections and submissions of questions 
provided for in this article shall be conducted by the election 
authorities prescribed by general law. The percentage of elec¬ 
tors required to sign any petition provided for herein shall be 
based upon the total vote cast at the last preceding general mu¬ 
nicipal election. (Adopted September 3, 1912.) 

Vote: “Yes,” 301,861; “No,” 215,120. 

SCHEDULE. 

If the foregoing amendment to the constitution be adopted 
by the electors and become a part of the constitution, it shall 
take effect on November 15, 1912. (Adopted September 3, 1912.) 

Vote: “Yes,” 301,861; “No,” 215,120. 


• SCHEDULE. 

Section 1. All laws of this state, in force on the first day 
of September one thousand eight hundred and fifty-one, not 
inconsistent with this constitution, shall continue in force, until 
amended, or repealed. {See Const. 1802, Sehed. § 4.) 

See Const. 1802, Schedule, § 4. 

Cited: State, ex rel., v. Trustees, 8 O. S. 394; Allbyer v. State, 
10 O. S. 589; Cable v. Alvord, 27 O. S. 654; Lyon v. Lyon, 1 O. C. C. 
(N.S.) 246, 14 O. C. D. 498. 

The new constitution of Ohio created no new state. It only 
altered, in some respects, the fundamental law of a state already in 
existence; and even this was done pursuant to the prior constitution, 
under whose provisions the convention was called, and the new con¬ 
stitution framed: Cass v. Dillon, 2 O. S. 607. 

All laws in force when the constitution of 1851 took effect, and 
which were not inconsistent with it, remained in for-'e without an 
express provision to that effect; and all inconsistent law.e fell simply 
because they were inconsistent; in other Avords, all repui^nant laws 
were repealed by implication: Cass v. Dillon, 2 O. S. 607. 

The repugnancy w’hich must cause a law to fall mu.st be necessary 
and obvious. If by any fair course of reasoning the lu'v and the con¬ 
stitution can be reconciled, the law muse stand: Railroad v. Commis¬ 
sioners, 1 O. S. 77; State, ex rel., v. Dudley, 1 O. S. 137; Cass v. Dillon, 
2 O. S. 607; Hill v. Higdon, 5 O. S. 243; Armstrong v. Th’easiirer, 10 O. 
2:15: Goshorn v. Purcell, 11 O. S. 641. 

The English common law, so far as it is reasonable in itself, suit¬ 
able to the condition and business of our people, and consistent Avith 
the letter and spirit of our federal and state constitutior.s and statutes, 
has been and is followed by our courts, and may be said to constitute 
a part of the common law of Ohio. But wherever it has been found 
AA^anting in either of these requisites, our courts have not hesitated to 
modify it to suit our circumstances, or, if necessary, Avhoily to depart 
from it: Bloom v. Richards, 2 O. S. 387. 

The laws of a conquered country being held to remain in force until 
repealed, so far as they are consistent with the government of the 
conquerors, a fortiori must it be held, that the laws of a state survive 
a peaceable chajige of its constitution, effected by its ow'n people, and 
not varying the general structure of the government, to the full extent 
to which they are consistent Avith the neAV order of things: Cass v. 
Dillon, 2 O. S. 607. 



303 


CONSTITUTION OF THE STATE OP OHIO OF 1851 . 


The rule, that repeals by implication are not favored, is applicable 
to the inquiry, whether any particular enactment has ceased to be in 
force on account of repugnancy to the new constitution: State, ex rel., 
V. Dudley, 1 O. S. 437; approved, Cass v. Dillon, 2 O. S. 607. 

The “free banking act” of March 21, 1851 (G. C. § 9676), though 
passed eleven days after the adoption of the constitution by the con¬ 
vention, would by virtue of § 1, of the schedule, remain in force and 
thus extend the privilege of this system of banking for twenty-one 
years: State v. Gibbs, 7 O. N. P. (N.S.) 345; see, also. Art. IV, § 1, con¬ 
stitution of 1851. 

2 Debates, 804, 818, 819, 844, 847, 864, 870. 

Section 2. The first election for members of the general 
assembly, under this constitution, shall be held on the second 
Tuesday of October, one thousand eight hundred and fifty-one. 

Cited: State, ex rel., v. Creamer, 83 O. S. 412. 

2 Debates, 804, 817-819, 844, 847, 864, 870. 

Section 3. The first election for governor, lieutenant 
governor, auditor, treasurer, and secretary of state and attor¬ 
ney general, shall be held on the second Tuesday of October, 
one thousand eight hundred and fifty-one. The persons, hold¬ 
ing said offices on the first day of September, one thousand 
eight hundred and fifty-one, shall continue therein, until the 
second Monday of January, one thousand eight hundred and 
fifty-two. 

2 Debates, 804, 817-819, 843, 844, 847, 864, 870 

Section 4. The first election for judges of the supreme 
court, courts of common pleas, and probate courts, and clerks 
of the courts of common pleas, shall be held on the second 
Tuesday of October, one thousand eight hundred and fifty-one, 
and the official term of said judges and clerks, so elected, shall 
commence on the second Monday of February, one thousand 
eight hundred and fifty-two. Judges and clerks of the courts 
of common pleas and supreme court, in office on the first day 
of September, one thousand eight hundred and fifty-one, shall 
continue in office with their present powers and duties, until the 
second Monday of February, one thousand eight hundred and 
fifty-two. No suit or proceeding, pending in any of the courts 
of this state, shall be affected by the adoption of this consti¬ 
tution. (See Art. IV, § 7, note 2; § 13, note.) 

Cited: State, ex rel., v. Governor, 7 O. S. 372; State, ex rel., v. 
Taylor, 15 O. S. 137; State, ex rel., v. McCracken, 51 O. S. 123. 

2 Debates,, 804, 817-819, 844, 847, 864, 870. 

Section 5. The register and receiver of the land office, 
directors of the penitentiary, directors of the benevolent in¬ 
stitutions of the state, the state librarian, and all other officers, 
not otherwise provided for in this constitution, in office on the 
first day of September, one thousand eight hundred and fifty- 
one, shall continue in office, until their terms expire, respectively, 
unless the general assembly shall otherwise provide. 

2 Debates, 804, 817-819, 844, 847, 864, 865, 870. 

Section 6 . The superior and commercial courts of Cin¬ 
cinnati, and the superior court of Cleveland, shall remain, un¬ 
til otherwise provided by law, with their present powers and 
Jurisdiction; and the judges and clerks of said courts, in office 


Schedule, § 2. 


The first elec¬ 
tion of members 
of general as¬ 
sembly. 


For state officers. 


For judges, 
clerks, etc. 


What officers to 
continue in office 
until the ex¬ 
piration of ♦heir 
term. 


As to certain 
courts. 




304 


Schedule, § 6. 


County and town¬ 
ship officers. 


Vacancies. 


When constitu¬ 
tion shall take 
effect. 


Term of office- 


Transfer of 
suits. 


CONSTITUTION OF THE STATE OP OHIO OP 1851 . 


on the first day of September, one thousand eight hundred and 
fifty-one, shall continue in office, until the expiration of their 
terms of office, respectively, or, until otherwise provided by 
law; but neither of said courts shall continue after the second 
Monday of February, one thousand eight hundred and fifty- 
three; and no suits shall be commenced in said two first men¬ 
tioned courts, after the second Monday of February, one thous¬ 
and eight hundred and fifty-two, nor in said last mentioned 
court, after the second Monday in August, one thousand eight 
hundred and fifty-two; and all business in either of said courts, 
not disposed of within the time limited for their continuance 
as aforesaid, shall be transferred to the court of common pleas. 

2 Debates, 804, 818, 819, 844, 847, 865, 870. 

Section 7. All county and township officers and justices 
of the peace, in office on the first day of September, one thou¬ 
sand eight hundred and fifty-one, shall continue in office until 
their terms expire, respectively. 

Cited: Shepler v. Dewey, 1 O. S. 331; State, ex rel., v. Howe, 25 
O. S. 588. 

2 Debates, 804, 818, 819, 844, 847, 865, 870. 

Section 8. Vacancies in office, occurring after the first 
day of September, one thousand eight hundred and fifty-one, 
shall be filled, as is now prescribed by law, and until officers 
are elected or appointed, and qualified, under this constitution. 

Cited: State, ex rel., v. Howe, 25 O. S. 588. 

2 Debates, 804, 817, 819, 844, 847, 865, 870. 


Section 9. This constitution shall take eflfect, on the first 
day of September, one thousand eight hundred and fifty-one. 

“The constitution must receive the same construction since its 
ratification by the people that it would have received when it passed 
from the hands of the convention. As a necessary result from this 
principle, thing's as they existed on the tenth of March, when it was 
adopted by the convention, must control in its construction. In short, 
the instrument speaks from the tenth of March, although, by its own 
terms, its effect was postponed to the first of September, and none the 
less so because the approval of the people was made necessary to its 
ultimate effect. They but ratified and approved an act already done by 
their representatives in convention, and were not, in any correct sense, 
the authors of the act itself”: State, ex rel., v. Dudley, 1 O. S. 437. 

2 Debates, 804, 818, 819, 844, 847, 865, 870. 

Section 10. All officers shall continue in office, until their 
successors shall be chosen and qualified. {See Const. 1802, 
Sched. § 3.) 

See Const. 1802, Schedule, § 3. 

Cited: State, ex rel., v. Howe, 25 O. S. 588. 

This section was not intended as a permanent provision of the 
constitution, and as such applicable to officers chosen under it, but 
was limited, in its application, to officers chosen or appointed under the 
old constitution, and whose term of office did not expire until after the 
taking effect of the new constitution: State v. Taylor, 15 O. S. 137. 

2 Debates, 804, 818, 819, 844, 847, 865, 870. 

Section 11. Suits pending in the supreme court in bank, 
shall be transferred to the supreme court provided for in this 
constitution, and be proceeded in according to law. 

2 Debates, 804, 818, 819, 844, 847, 865, 870. 



305 


CONSTITUTION OF THE STATE OF OHIO OF 1851 . 


Section 12. The district courts shall, in their respective 
counties, be the successors of the present supreme court; and 
all suits, prosecutions, judgments, records, and proceedings, 
pending and remaining in said supreme court, in the several 
counties of any district, shall be transferred to the respective 
district courts of such counties, and be proceeded in, as though 
no change had been made in said supreme court. 

Cited: Shepler v. Dewey, 1 O. S. 331; Ohio v. Kelley, 25 O. S. 29; 
Webster v. State, 43 O. S. 696. 

2 Debates, 804, 817-819, 844, 847, 865, 870. 

Section 13. The said courts of common pleas, shall be 
the successors of the present courts of common pleas in the 
several counties, except as to probate jurisdiction; and all suits, 
prosecutions, proceedings, records and judgments, pending or 
being in said last mentioned courts, except as aforesaid, shall 
be transferred to the courts of common pleas created by this 
constitution, and proceeded in, as though the same had been 
therein instituted. 

Cited: Shepler v. Dewey, 1 O. S. 331. 

2 Debates, 804, 818, 819, 844, 847, 865, 870. 

Section 14. The probate courts provided *for in this con¬ 
stitution, as to all matters within the jurisdiction conferred upon 
said courts, shall be the successors, in the several counties, of 
the present courts of common pleas; and the records, files, and 
papers, business and proceedings, appertaining to said juris¬ 
diction, shall be transferred to said courts of probate, and be 
there proceeded in, according to law. 

2 Debates, 804, 817-819, 844, 847, 865, 870. 

Section 15. Until otherwise provided by law, elections 
for judges and clerks shall be held, and the poll books re¬ 
turned, as is provided for governor, and the abstract therefrom, 
certified to the secretary of state, shall be by him opened, in 
the presence of the governor, who shall declare the result, and 
issue commissions to the persons elected. 

Cited: State v. Barbee, 45 O. S. 347. 

2 Debates, 844, 847, 865, 870. 

Section 16. Where two or more counties are joined in 
a senatorial, representative, or judicial district, the returns of 
elections shall be sent to the county, having the largest popula¬ 
tion. 

2 Debates, 782, 847, 865, 870. 

Section 17. The foregoing constitution shall be sub¬ 
mitted to the electors of the state, at an election to be held 
on the third Tuesday of June, one thousand eight hundred and 
fifty-one, in the several election districts of this state. The bal¬ 
lots at such election shall be written or printed as follows: 
Those in favor of the constitution, “New Constitution, Yes;” 
those against the constitution, “New Constitution, No.” The 
polls at said election shall be opened between the hours of 
eight and ten o’clock A. m., and closed at six o’clock p. m.; and 
the said election shall be conducted, and the returns thereof 


Schedule, § 12. 


Same subject. 


Same subject. 


Same subject. 


Judges and clerks, 
how elected, etc. 


Election returns, 
where sent. 


Constitution sub* 
mitted to the 
electors of the 
state, etc. 



306 


Schedule, § 17. CONSTITUTION OF THE STATE OF OHIO OF 1851 . 


made and certified, to the secretary of state, as provided by law 
for annual elections of state and county officers. Within twenty 
days after such election, the secretary of state shall open the 
returns thereof, in the presence of the governor; and. if it shall 
appear that a majority of all the votes, cast at such election, 
are in favor of the constitution, the governor shall issue his 
proclamation, stating that fact, and said constitution shall be 
the constitution of the state of Ohio, and not otherwise. 

The result of this election, excluding the returns of two counties, Defiance and 
Auglaize, which were not received in the twenty days specified, was as follows: 


"New Constitution, Yes” . 126,564 

"New Constitution, No” . 109,276 

Majority for New Constitution. 16,288 


2 Debates, 805, 813-815, 819, 824, 844, 847, 848, 865, 870. 


License to traffic 
in intoxicating 
liquors. 


Section 18. At tlie time when the votes of the electors 
shall be taken for the adoption or rejection of this constitution, 
the additional section, in the words following, to wit: “No 
license to traffic in intoxicating liquors shall hereafter be granted 
in this state; but the general assembly may, by law, provide 
against evils resulting tlierefrom,” shall be separately submitted 
to the electors Tor adoption or rejection, in form following, to 
wit: A separate ballot may be given by every elector and de¬ 
posited in a separate box. Upon the ballots given for said 
separate amendment shall be written or printed, or partly writ¬ 
ten and partly printed, the words: “License to sell intoxicating 
liquors. Yes;” and upon the ballots given against said amend¬ 
ment, ill like manner, the words: “License to sell intoxicating 
liquors. No.” If, at the said election, a majority of all the 
votes given for and against said amendment, shall contain the 
words: “License to sell intoxicating liquors. No,” then the 
said amendment shall be a separate section of article fifteen of 
the constitution. 


This election resulted: 

"License to sell intoxicating liquors, No”. 113,237 

"License to sell intoxicating liquors, Yes”. 104,255 


Majority against License. 8,982 


Cited: Dri??prs v. State, 52 O. S. 37; Arnold v. Van Wert, 3 O. C. C. 
545. 2 O. C. D. 314; Schmeltz v. State, 8 O. C. C. 82. 4 O. C. D. 287; 
Starling- v. Bowling Green, 5 O. C. C. (N.S.) 217. 16 O. C. D. 581; Brew¬ 
ing Co. V. Demko, 9 O. C. C. tN.S.) 130, 19 O. C. D. 102; Brewing Co. v. 
Beck. 10 O. C. C. (N.S) 361, 20 O. C. D. 226. 

This clause expressly authorized §§ 1, 2, 4, 8, of the act of May 1, 
1854 (52 V. 153), ‘‘to provide against the evils resulting from the sale 
of intoxicating liciuors in the state of Ohio”: IMiller v. State, 3 O. S. 
475. 

The constitutionality of a statute depends upon its operation and 
effect, and not upon the form it may be made to assume. A license is 
permission granted by some competent authority to do an act which, 
without such permission, would be illegal. The act of April 5, 1882, 
^vhich requires every person engaged, or engaging in such traffic to 
pay a specified sum of money annually, and to execute a bond, as 
therein required: and also provides that ‘‘every person wno shall engage 
or continue in such traffic, without having executed the bond * * ♦ 

or, after his bond shall have been adjudged forfeited * * * shall 

be deemed guilty of a misdemeanor.” is. in its opf^iation and eff<:'ct, as 
to the traffic not already prohibited, a license, within this section, and 
void: State v. Hipp, 38 O. S. 199. 

The statute of April 17, 1883, commonly known as the Scott law, 
and entitled, ‘‘an act further to provide against evils resulting from 
the traffic in intoxicating liquors,” authorizing assessments upon the 
business of trafficking in intoxicating liquors, is a valid and constitu¬ 
tional enactment: State, ex rel., v. Frame, 39 O. S. 399. 












307 

CONS'I'ITUTION OP THE STATE OP OHIO OP 1851 . Schedule, § 18. 


The Scott law (80 v. 164), as far as it provided for a lien upon 
real property occupied by one who sold intoxicating- liquors, was said 
to be in effect a license and therefore unconstitutional: Butzman v. 
Whitbeck, 42 O. S. 223; see, also. State v. Sinks, 42 O. S. 345; King v. 
Cappeller, 42 O. S. 218. 

It is competent to the general assembly of the state to impose a 
tax on the business of trafficking in intoxicating liquors as a means 
of providing against the evils resulting therefrom. Neither the tax 
so imposed nor a provision that the same shall attach as a lien on the 
property in which it is conducted, constitutes a license within the 
meaning of Art. XIV, § 9, of the constitution: Adler v. Whitbeck, 44 
O. S. 539. 

A statute which excludes from the business of dealing in intoxi¬ 
cating liquors, persons who are unable to make certain specified 
answers to certain specified questions concerning the character of the 
saloons operated by such persons (G. C. § 6083) is not a license act, and 
is not forbidden by this section: Bloomfield v. State, 86 O. S. 253. 

Section 18 of the Schedule applies as well to the wholesale as to 
the retail traffic in intoxicating liquors: Senior v. Ratterman, 44 O. S. 
661. 

The general assembly has power (except as limited by § 18 of the 
Schedule to the constitution) to regulate occupations by license, and 
to compel, by imposition of a fine, payment of a reasonable fee, where 
a special benefit is conferred by the public upon those who follow an 
occupation, or where the occupation imposes special burdens on the 
public, or where it is injurious or dangerous to the public: Marmet v. 
State, 45 O. S. 63. 

The “township local option law” is constitutional (see G. C. § 6119, 
et seq.): Gordon v. State, 46 O. S. 607. 

It is a question for the judgment of the legislature, under this • 
section, to determine what are the best means to provide against the 
evils resulting from the traffic in intoxicating liquors: Lloyd v. 
Dollisin, 3 O. C!. C. (N.S.) 328, 13 O. C. D. 571 [affirmed, without report. 
State, ex rel., v. Dollison, 68 O. S. 688]. 

The provision of § 4364-12, making any balance of the Dow tax, 
left after the sale of the chattels of a tenant for nonpayment, a lien 
upon the prem.ises where the liquor is sold, is unconstitutional and 
void as to landlord who has covenanted against such sales and igno¬ 
rant that they were being made, and the sales were in fact made in 
a dwelling house secretly to guests: Foley v. Roth, 8 O. N. P. (N.S.) 
425. 

The Dow tax is valid and operative in a coiinty which has been 
voted “dry” under the Rose county local option law: Reider v. Davis. 
10 O. N. P. (N.S.) 177, 20 O. D. (N.P.) 407. 

The fact that saloons are already in existence does not prevent the 
legislature from forbidding the sale of intoxicating liquor: Columbus 
V. Jeffrey. 2 O. N. P. (N.S.) 85. 14 O. D. (N.P.) 609. 

The provision of this section has stood since its adoption as a 
perpetual admonition to all persons engaging in the traffic that in 
doing so, they place their property invested in the business subject to 
the power of the general assembly to provide against evils resulting 
from the traffic: Gassman v. Kerns, 19 O. D. (N.P.) 317. 

The act “to prohibit the furnishing or giving away of food without 
charge in any place in this state where intoxicating liquors are sold 
(101 V. 357; G. C. § 13224-1, et seq.) is unconstitutional: State v. Foucar, 

8 O. L. R. 317. 

General Code § 13206, which forbids the sale of intoxicating liquor 
within two miles of agricultural fairs, is held to be constitutional in 
the form in which it applied to persons who were permanently located 
within such distance of such fair: Heck v. State, 44 O. S. 536. 

2 Debates, 362, 436-461, 694, 695, 711-723, 726, 788, 789, 793, 805, 848, 
865, 870. 


Section 19. The apportionment of the house for rep¬ 
resentatives, during the first decennial period under this con¬ 
stitution, shall be as follows: 

See Schedule, § 9. 

Cited: State, ex rel., v. Dudley, 1 O. S. 437 

1 Debates, 460; 2 Debates, 7, 708, 782, 783, 822, 823, 848, 865, 866, 870 

The counties of Adams, Allen, Athens, Auglaize, Carroll, 
Champaign, Clark, Clinton, Crawford, Darke, Delaware, Erie, 
Fayette, Gallia, Geauga, Greene, Hancock, Harrison, Hocking, 


Apportionment 
for house of 
representatives. 



307 a 


Schedule, § 19. 


(^INSTITUTION OF THE STATE OF OHIO OF 1851 . 


Holmes, Lake, L.awrence, Logan, Madison, Marion, Meigs, 
Morrow, Perry, Pickaway, Pike, Preble, Sandusky, Scioto, 
Shelby and Union, shall, severally, be entitled, to one repre¬ 
sentative, in each session of the decennial period. 

The counties of Franklin, Licking, Montgomery, and Stark, 
shall each be entitled to two representatives, in each session of 
the decennial period. 

The counties of Ashland, Coshocton, Highland, Huron, 
Lorain, Mahoning, Medina, Miami, Portage, Seneca, Summit, 
and Warren, shall, severally, be entitled to one representative, 
in each session; and one additional representative in the fifth 
session of the decennial period. 

The counties of Ashtabula, Brown, Butler, Clermont, Fair- 
field, Guernsey, Jefferson, Knox, Monroe, Morgan, Richland, 
Trumbull, Tuscarawas, and Washington, shall, severally, be en¬ 
titled to one representative, in each session; and two additional 
representatives, one in the third, and one in the fourth session 
of the decennial period. 

The counties of Belmont, Columbiana, Ross and Wayne, 
shall, severally, be entitled to one representative, in each ses¬ 
sion ; and three additional representatives, one in the first, one 
in the second, and one in the third session of the decennial period. 

The county of Muskingum shall be entitled to two rep¬ 
resentatives, in each session; and one additional representative, 
in the fifth session, of the decennial period. 

The county of Cuyahoga shall be entitled to two rep¬ 
resentatives, in each session; and two additional representatives, 
one in the third, and one in the fourth session of the decennial 
period. 

The county of Hamilton shall be entitled to seven repre¬ 
sentatives, in each session; and four additional representatives, 
one in the first, one in the second, one in the third, and one 
in the fourth session, of the decennial period. 

The following counties, until they shall have acquired a 
sufficient population to entitle them to elect, separately, under 
the fourth section of the eleventh article, shall form districts 
in manner following, to wit: The counties of Jackson and 
Vinton, one district; the counties of Lucas and Fulton, one dis¬ 
trict ; the counties of Wyandot and Hardin, one district; the 
counties of Mercer and Van Wert, one district; the counties of 
Paulding, Defiance, and Williams, one district; the counties of 
Putnam and Henry, one district; and the counties of Wood 
and Ottawa, one district; each of which districts shall be en¬ 
titled to one representative, in every session of the decennial pe¬ 
riod. 

Done in convention, at Cincinnati, the tenth day of March, 
in the year of our Lord, one thousand eight hundred and fifty- 
one, and of the independence of the United States, the seventy- 
fifth. 

WILLIAM MEDILL, President. 

Attest: Wm. H. Gill, Secretary. 



. 307b 

CONSTITUTION OF THE STATE OP OHIO OP 1851. Schedule, § 

S. J. Andrews, 

William Lawrence, 

Edward Arch bold. 

John Larwill, 

William Barbee, 

Robert Leech, 

Joseph Barnett, 

D. P. Leadbetter, 

David Barnet, 

John Lidey, 

Wm. S. Bates, 

James Loudon, 

A. I. Bennett, 

J. McCormick, 

John H. Blair, 

H. S. Manon, 

Jacob Blickensderfer, 

Samson Mason, 

Van Brown, 

Matthew H. Mitchell, 

A. G. Brown, 

Isaiah Morris, 

R. W. Cahill, 

Charles McCloud, 

F. Case, 

Simp:on Nash, 

L. Case, 

S. F. Norris, 

David Chambers, 

Chas. j. Orton, 

John Chany, 

W. S. C. Otis, 

H. D. Clark, 

Thomas Patterson, 

George Collings. 

Danl. Peck, 

Friend Cook, 

Jacob Perkins, 

Otway Curry, 

Saml. Quigley, 

G. VoLNEY Dorsey, 

R. P. Ranney, 

Thos. W. Ewart, 

Chas. Reemelin, 

John Ewing, 

Adam N. Riddle, 

Joseph M. Farr, 

Fdward C. Roll, 

Elias Florence, 

Wm. Sawyer, 

Robert Forbes, 

Sabirt Scott, 

H. C. Gray, 

John Sellers, 

H. N. Gillett, 

John A. Smith, 

John Graham, 

George J. Smith, 

■ John L. Green, 

B. P. Smith, 

Jacob J. Greene, 

Henry Stanbery, 

Henry H. Gregg, 

B. Stanton, 

W. S. Groesbeck, 

Albert V. Stebbins, 

C. S. Hamilton, 

F. T. Stickney, 

D. D. T. Hard, 

Richd. Stillwell, 

A. Harlan, 

Harman Stidger, 

William Hawkins, 

James Struble, 

James P. Henderson, 

T. R. Swan, 

Peter Hitchcock, 

L. Swift, 

G. W. Holmes, 

James W. Taylor, 

Geo. B. Holt, 

Norton S. Townshend, 

John J. Hootman, 

Hugh Thompson, 

V. B. PIORTON, 

Joseph Thompson, 

Samuel Humphreville, 

' Joseph Vance, 

John E. Hunt, 

Flijah Vance, 

B, B. Hunter, 

Wm. M. Warren, 

Reuben Hitchcock, 

Thomas A. Way, 

John Johnson, 

J. Milton Williams, 

J. Dan Jones, 

Elzey Wilson, 

James B. King, 

Jas. T. Worthington, 

S. J. Kirkwood, 

Thos. J. Larsh, 

F. B. Woodbury. 


SCHEDULE TO CONSTITUTIONAL AMENDMENTS SUBMITTED ON 
SEPTEMBER 3, I912. 

[Section 20 .] The several amendments passed and submitted 
by this convention when adopted at the election shall take effect 





308 


Schedule, § 21. 


Method 
of submission. 


CONSTITUTION OF THE STATE OF OHIO OF 1851 . 


on the first day of January, 1913, except as otherwise specifically 
provided by the schedule attached to any of said amendments. 
All laws then in force, not inconsistent therewith shall continue in 
force until amended or repealed; provided that all cases pending 
in the courts on the first day of January, 1913, shall be heard 
and tried in the same manner and by the same procedure as is 
now authorized by law. Any provision of the amendments passed 
and submitted by this convention and adopted by the electors, 
inconsistent with, or in conflict with, any provision of the present 
constitution, shall be held to prevail. (Adopted September 3, 
1912.) 

Vote: “Yes,” 275,062; “No,” 213,979. 


[Section 21.] The several proposals duly passed by this con¬ 
vention shall be submitted to the electors as separate amendments 
to the constitution at a special election to be held on the third day 
of September, 1912. The several amendments shall be designated 
on the ballot by their proper article and section numbers and also 
by their approved descriptive titles and shall be printed on said 
ballot and consecutively numbered in the manner and form here¬ 
inafter set forth. The adoption of any amendment by its title 
shall have the effect of adopting the amendment in full as finally 
passed by the convention. Said special election shall be held 
pursuant to all provisions of law applicable thereto including 
special registration. Ballots shall be marked in accordance with 
instructions printed thereon. Challengers and witnesses shall be 
admitted to all polling places under such regulations as may be 
prescribed by the secretary of state. Within ten days after said 
election the boards of deputy state supervisors of elections of 
the several counties shall forward by mail in duplicate sealed 
certified abstracts of the votes cast on the several amendments, 
one to the secretary of state and one to the auditor of state at 
Columbus. Within five days thereafter such abstracts shall be 
opened and canvassed by the secretary of state and auditor of 
state in the presence of the governor who shall forthwith, by proc¬ 
lamation, declare the results of said election. Each amendment 
on which the number of affirmative votes shall exceed the number 
of negative votes shall become part of the constitution. 

HERBERT S. BIGELOW, 

C. B. GALBREATH, President. 

Secretary, 

Columbus, Ohio, June 1 , 1912 . 


David E. Anderson, 
Ernest I. Antrim, 
John L. Baum, 
Robert A. Beatty, 

A. Beyer, 

Stanley E. Bowdle, 
Wesley B. Brattain, 
H. M. Brown, 
Walter E. Brown, 

M. A. Brown, 


William W. Campbell, 
John R. Cassidy, 

M. T. Cody, 

Bernard Y. Collett, 
Geo. H. Colton, 

Henry E. Cordes, 
Henry M. Crites, 
Robbert. Crosser, 

David Cunningham, 
William C. Davio, 




308 a 


CONSTITUTION OF THE STATE OF OHIO OF 1851 . 


Toe DeFrees, 

A. V. Donahey, 
Edward W. Doty, 
Charles O. Dunlap, 
Alexander Dunn, 
Dennis Dwyer, 

Henry E. Eby, 

J. Milton Earnhart, 
Henry W. Elson, 

John D. Fackler, 

W. W. Farnsworth, 
Thomas S. Farrell, 

S. D. Fess, 

Thos. G. FitzSimons, 
James M. Fluke, 
Henry C. Fox, 

Aaron Hahn, 

VVm. P. Halenkamp, 
James W. Halfhill, 
James W. Harbarger, 
Wm. S. Harris, 

Geo. W. Harris, 

Otto M. Harter, 

Isaac Harter, 

Robert Henderson, 
John C. Hoffman, 
Charler D. Holtz, 
Samuel A. Hoskins, 
Frank G. Hursh, 
Edward W. Johnson. 
Solomon Johnson, 
Humphrey Jones, 

J. W. Kefioe, 

Henry C. Keller, 
Frank H. Kerr, 

Wm. B. Kilpatrick, 

E. B. King, 

G. W. Knight, 

John F. Kramer, 
Lawrence P. Kunkle, 
Frank P. Lambert, 

E. L. Lampson, 

Fred G. Leete, 

Daniel E. Leslie, 
Robert B. Longstreth, 
Chris Ludey, 

Fletcher D. Malin, 
Frank M. Marriott, 


Allen M. Marshall, 

N. E. Matthews, 
l^oscoE J. Mauck, 

R. G. McClelland, 

Geo. W. Miller, 

Frank P. Miller, 

Wm. Miller, 

Illion E. Moore, 

Caleb H. Norris, 

David J. Nye, 

J. A. Okey, 

W. E. Partington, 
Hiram D. Peck, 

Edward A. Peters, 

David Pierce, 

Geo. W. Pettit, 

T. D. Price, 

A. Ross Read, 

Horace G. Redington, 
Jno. H. Riley, 

Wm. M. Rockel, 

John Roehm, 

John C. Rorick, 

Stanley Shaffer, 

Eli E). Shaw, 

H. K. Smith, 

Starbuck Smith, 

J. C. SOLETHER, 

Franklin J. Stalter, 

M. Stamm, 

W. B. Stevens, 

O. H. Stewart, 

Stephen S. Stillwell, 
William Worth Stokes, 
Frank Taggart, 

James C. Tallman, 

}. W. Tanneiiill, 

Percy Tetlow, 

Harry D. Thomas, 

John Ulmer, 

Edwin T. Wagner, 
Wilmer R. Walker, 
Harvey Watson, 

Benj. F. Weybrecht, 
John W. Winn, 

Frank C. Wise, 

F. W. Woods, 

Wm. Worthington. 


Schedule, § 21. 






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Index to the Constitution of Ohio, 1851. 


A. 

Accused Persons — Art. 

Rights of . 1 

Actions — 

Form of, to be abolished. 14 

Acts— (See Laws.) 

Adjournment — 

Of legislature — by less than quorum of either house. 2 

when consent of both houses required. 2 

when may be ordered by governor. 3 

Administrators — 

Appointment, and settlement of accounts. 4 

Sale of land by . 4 

Affirmation — (See Oath.) 

Agents — 

Public, no extra compensation. 2 

Amendment — 

To laws, how made . 2 

To Constitution, how made. 16 

To Constitution by initiative . 2 

First amendment to Constitution. 4 

Schedule to amendments submitted September 3, 1912. Sched. 

Appellate Jurisdiction — 

Of the supreme court. 4 

Of circuit court, fixed by law. 4 

Appointing Power — 

Not in general assembly, except. 2 

Apportionment — 

Of state for members of general assembly. 11 

Made every ten years. 11 

How made . 11 

Into thirty-three senatorial districts. 11 

Each district one senator for ten years, except Hamilton. 11 

Into nine judicial districts. 11 

For representatives . Sched. 

Counties entitled to one representative. Sched. 

Counties entitled to two. Sched. 

Counties entitled to one, and an additional one part of time. Sched. 

For representatives for first decennial period. Sched. 

Appropriations — 

Of money, how made. 2 

Not for over two years. 2 

Of property for public use. 1 

Of property to the use of corporations. 13 

Armies — 

Standing, dangerous in time of peace. 1 

Arms — 

Right to bear . 1 

Public, safe-keeping of. 9 

Arrest — 

Members of legislature exempt from, when. 2 

Electors exempt from, when. 6 


Articles — 

1st, subject of bill of rights. 

2d, subject of legislative... 

3d, subject of executive. 

4th, subject of judicial ... 

6th, subject of elective franchise. 

6th, subject of education . 

7th, subject of public institutions. 

8th, subject of public debt and public works. 

9th, subject of militia. 

10th, subject of county and township organizations 

309 


Sec. 

10 

2 


6 

14 

9 

8 

8 


29 


16 

1-3 

la 

21 

[ 20 J 

2 

6 


27 


1 

1 

1 

7 

7 

12 

19 

19 

19 

19 

19 


22 

22 

19 

6 


4 

4 

6 

12 

3 





















































310 


INDEX TO THE CONSTITUTION OP OHIO, 1851. 


Articles — Art. Sec. 

11th, subject of apportionment. 

12th, subject of finance and taxation. 

13th, subject of corporations. 

14th, subject of jurisprudence. 

15th, subject of miscellaneous. 

18th, subject of amendments. 

Schedule — subject miscellaneous . 


A.ssessmf.nts — 

By municipal corporations, to be restricted. 13 6 

Attendance —‘ ' 

Houses of general assembly may compel. 2 6 

Attorney-General — 

One of executive department. 3 1 

How and when chosen . 3 1 

Term of office. 3 2 

Term of office. 17 2 

Term to commence, when. 3 2 

\'^acancy, how filled . 3 18 

Commissioners of sinking fund. 8 8 

Auditor of State — ^ 

One of executive department. 3 1 

How and when chosen . 3 1 

Term of office . 3 2 

Term of office . 17 2 

Vacancy, how filled. 3 18 

Commissioners of sinking fund. 8 8 

With governor and secretary to fix representation. 11 H 


B 

Bail — 

Excessive, shall not be required. 

Bailabt.f — 

Who are .,. 

Ballot — 

Elections shall be by. 

Bank — 

How taxed . 

Restriction on use of term. 

Liability of stockholder . 

Banking Powers — 

Acts conferring, submitted to people. 

Benevolent Institutions— (.See Public Institutions.) 

Directors’ term of office. 

To be fostered by state. 

Regulated by general assembly. 

Trustees, how appointed. 

V’acancies, how filled. 

Directors of, to continue, until. 

Bill of Rights — (See Rights.) 

Bills, Legislative — 

Yeas and nays on passage of. 

Majority of each house necessary to passage of. 

May originate in either house.._. 

May be altered, amended, or rejected. 

To be read three different days, except. 

To contain but one subject. 

Subject to be clearly expressed in title. 

How and when to be signed. 

Printing of, provided for . 

V’eto by governor . 

Blind — 

To be provided for. 

Blood — 

Not corrupted by crime. 

Bonds —■ 

Not to be exempt from taxation. 

Restriction upon renewal of bonds. 

Breach of Peace — 

No exemption from arrest in case of. 

€4 *4 44 44 

Bribery — 

What may be forfeited by. 

Bureau of Statistics — 

May be established. 

Regulated by law. 

Burial Grounds — 

May be exempted from taxation. 


1 9 


1 9 


5 2 


12 .3 

13 3 

13 3 


13 7 


Sched. 5 

7 1 

7 1 

7 2 

7 3 

Sched. 5 


2 9 

2 9 

2 15 

2 15 

2 16 

2 16 

2 16 

2 17 

15 2 

2 16 


7 1 


1 12 


12 2 
12 11 


2 12 

5 3 

6 4 


16 8 

15 8 


12 2 






























































311 


INDEX TO THE CONSTITUTION OF OHIO, 1851 . 


C. 

Census of State — 

How ascertained for representation.. 

Challenge — 

To fight duel. 

Charity — 

Public institutions of, may be exempted from taxation 
Cincinnati Courts — 

Continuance oi i^owers and jurisdiction. 

Business transferred to common pleas.. 

Citizen — 

Who is . 

Who is not . 


City or Town —(See Municipal Corporations.) 
Civil Cases — 

Provision as to jury in... 

Civil Povvkr — 

Military subordinate to. 


Civil Service — 

System required 


Claims — 

Limitation as to payment of 


Classification — 

Private corporations may be classified 


Clerk of Supreme Court — 

To be clerk of supreme court commission 


Clerks of Courts — 

One in each county. 

How elected .. 

Term of office . 

To be clerk of all courts of record in county 
General assembly may provide clerk for each 

Of probate court . 

How removed . 

Of supreme court commission . 

Election returns, how certified. 

First election . 

Continuance in office. 


Cleveland Courts — 

Continuance of powers and jurisdiction 
Business transferred to common pleas.. 


Coal — 

Tax on production of . 

Columbus — 

The seat of government. 

Commercial Court of Cincinnati — (See Cincinnati Courts.) 
Commission — 

To aid supreme court. 

Commissioners — 

To reform law, number of. 

Their duties ... 

To abolish distinct form of action... 

Abolish distinction between law and equity. 

Report to general assembly. 

Of counties, their powers . 

Taxation by, for police purposes. 

Of the sinking fund. 

Their duties . 

To faithfully apply funds. 

To report to governor . 

Commissions — 

Issued by governor. 

How signed and sealed. 

Committees— . , , r . i 

Power of committees of each house of the general assembly 

Common Pleas Courts — 

How held . . 

In each county. 

Common Pleas Courts — 

Turisdiction, fixed by law... 

Number of judges may be changed, how. 

One judge to be chosen in each county. 

Probate court, combined with or separated therefrom, when 

Successors to what courts. 

Successors to what courts. 


Art. Sec. 
11 1 

16 6 

12 2 

Sched. 6 

Sched. 6 

6 1 

6 6,6 


1 5 

1 4 

15 10 

2 29 

13 2 

4 21 

4 10 

4 16 

4 16 

4 16 

4 16 

4 16 

4 16 

4 21 

Sched. 15 

Sched. 4 

Sched. 4 

Sched. 6 

Sched. 6 

12 10 

15 1 


4 21 

14 1 

14 2 

14 2 

14 2 

14 3 

10 7 

10 7 

8 8 

8 9 

8 10 

8 11 

3 13 

3 13 

2 8 

4 3 

4 8 

4 4 

4 15 

4 3 

4 7 

Sched. 6 

Sched. 13 
























































312 


INDEX TO THE CONSTITUTION OF OHIO, 1851. 


Common Pleas Districts— Art. Sec. 

County to constitute. 4 3 

Commutation — 

Allowed by governor, when. 3 11 

By legislature, in case of treason. 3 11 

Compensation — 

P'or injuries from state fund. 2 35 

For property taken for public use. 1 19 

Of officers, to be fixed by legislature. 2 20 

Extra, not allowed, except. 2 29 

Of members of general assembly. 2 31 

Of executive officers . 3 19 

Of probate judge . 4 7 

Of judges . 4 14 

Of members of supreme court commission. 4 2} 

Of board of public works. 8 13 

For right of way for corporations. 13 6 

Of commissioners of jurisprudence.•. 14 1 

Conciliation — 

Courts of, may be established. 4 19 

Congress — 

Members of, not to be governor. 3 14 

Conscience — 

Right of . 1 7 

Conservation — 

Of natural resources . 2 36 

Constitution — 

First amendment of . 4 21 

Oath to support, taken by officers. 15 7 

Not to affect suits pending. Sched. 4 

When to take effect..*. Sched. 9 

Submitted to the people. Sched. 17 

Amendment — 

how made . 16 1-3 

convention for . 16 8 

when to take effect. 16 3 

Constitutional Convention — 

Nomination and election of members. 16 2 

Constitutional Rule — 

Three-fourths of either house may dispense with. 2 16 

Contested Elections — 

Regulated by law. 2 21 

Contractors — 

Public, not to receive extra compensation.. 2 29 

Contracts — 

Not to be impaired by laws. 2 28 

Intention of parties, carried into effect. 2 28 

Convention—(S ee Joint Convention.^ 

Delegate to national convention chosen by direct vote. 5 7 

To amend constitution, how called. 16 2 

To be voted for. 16 3 

Conviction — 

Shall not work corruption of blood, etc. 1 12 

Convicts — 

Regulation of labor of. 2 41 

Corporations—(S ee Miinicipnl Corporations.) 

State not to indorse obligations of. 8 4 

State not to own stock in. 8 4 

(bounties, cities, etc., not to own stock in. 8 6 

No special act for. 13 1 

How created . 13 2 

Classification authorized . 13 2 

Regulation and supervision. 13 2 

Laws creating, may be altered or repealed. 13 2 

Debts owing by. how secured. 13 3 

Restriction on use of the term “bank”. 13 3 

Liability of stockholders . 13 3 

Property of, how taxed..._. 13 4 

How right of way appropriated for. 1.3 .5 

Municipal, how formed and regulated. 13 6 

For banking, laws authorizing. 13 7 

Counsel — 

Persons accused of crime may have. j 10 

























































INDEX TO THE CONSTITUTION OP OHIO, 1851 . 


313 


Counties — Art. 

Organization of . 10 

Shall not become stockholder in corporation, etc. 8 

May insure public buildings in mutual insurance companies. 8 

Not to raise money for nor loan credit to corporation. 8 

May be divided, when and how. 2 

State not to assume debt of, unless. 8 

Election returns, when joined in districts. Sched. 

New — 

how attached to districts. 11 

what to contain. 2 

to be voted for. 2 

not to divide city or town.•. 2 

Officers — 

when elected . 10 

“ “ . 17 

term of . 10 

powers . 10 

how removed . 10 

sheriff or treasurer eligible only four years in six. 10 

County Lines — 

Laws changing, to be submitted to electors. 2 

County Officer—(S ee Officers.) 

County Seats — 

Laws removing, to be submitted to electors. 2 

County Treasurer—(S ee Officers.) 

Eligible only four years in six. 10 

Court of Appeals — 

Districts . 4 

Number of judges . 4 

Qualification and terms of office. 4 

Terms of court . 4 

Jurisdiction . 4 

Restriction on power to reverse lower court. 4 

Report of decisions . 4 

Disqualification of judge to be determined by supreme court. 4 

Supreme court may require court of appeals to certify record to supreme court.... 4 

Courts —(See Supreme Court; Court of Appeals; Common Pleas Courts; Probate Court; 

Justices of the Peace.) 

All shall be open. 1 

Redress in . 1 

In what, judicial power vested. 4 

Legislature may establish other.. 4 

Of conciliation, may be established. 4 

Practice of, to be reformed. 14 

Of Cincinnati . Sched. 

Of Cleveland . Sched. 

In bank, succeeded by. Sched. 


Credit - (See State; Counties; Townships; Municipal Corporations.) 


Crime —(See Offenses.) 

Capital, when bailable ... 1 

None to answer, except by indictment, etc. 1 

Privileges of accused. 1 

None to be transported for.... . . 1 

What privileges may be forfeited by certain. 5 

Regulation of expert evidence in prosecutions for. 2 


Criminal Cases — 

Depositions in 


Sec. 

1 

Q 

6 

6 

30 

5 

16 


13 

30 

30 

30 

2 

1 

2 

7 

6 

3 


30 


30 


3 


6 

6 

6 

6 

6 

6 

6 

6 

2 


16 

16 

1 

15 

19 

2 

6 

6 

11 


9 

10 

10 

12 

4 

89 


5 


D. 

Damages — 

For right of way, how ascertained... 

For property taken for public use, how ascertained. 

*In case of death by wrongful act not to be limited by law 

Deaf and Dumb— (See Public Institutions.) 

To be provided for. 

Death by Wrongful Act— , , 

Amount of damages not to be limited by law. 


13 6 

1 19 

1 19a 


7 1 


1 19a 


Debate — 

Liberty of, protected 


Debt— (See Debt of State.) 

Imprisonment for, not allowed, except. 

For certain purposes, may be assumed by state 
Municipal corporations to be restricted to. 


2 12 


1 15 

8 6 

13 6 
























































INDEX TO THE CONSTITUTION OF OHIO, 1851. 


ol4 


Debt of State— Art. Sec. 

What state, may contract. tt 1, 2 

Money obtained by, how applied. 8 1, 2 

Extent of . 8 1 

What, payable by sinking fund. 8 2 

Limitation as to purposes. 8 3 

Faith of state pledged for payment of. 8 7 

How extinguished . 8 10 

Means to pay interest on must be provided'.. 12 4 

None to be contracted for internal improvement. 12 6 

Decisions — 

Report of decisions of supreme court and court of appeals. 4 6 

Defects — 

In instruments and proceedings, how cured. 2 28 

Defense — 

Feople may bear arms for.. 1 4 

Delegate — 

To national convention, chosen by direct vote. 5 7 

Delinquents — 

Public, ineligible to general assembly. 2 6 

Depositions — 

Taken by state in criminal cases. 1 10 

Direct Primary Election — 

When mandatory . 6 7 

Directors — 

Of penitentiary, how elected. 7 2 

Of public institutions, continued in office until. Sched. 6 

Districts— (See Judicial Districts; Representative Districts; Senatorial Districts.) 

Divorce — 

Not to be granted by legislature. 2 32 

Documents — 

Legislative, printing of, provided for. 15 2 

Duelist — 

Ineligible to office. 16 5 


E. 

Education—(S ee Schools.) 

Funds for, not to be diminished. 6 1 

Income from funds, how applied. 6 1 

Common schools, how provided for. 6 2 

No sect to have exclusive part of funds . 6 2 

Regulation of public school system of state. 6 3 

Power of city school districts. 6 3 

Superintendent of public instruction. 6 4 

Election — 

Regulated by law. 10 1 

“ “ . 6 1 

Contested, regulated by law. 2 21 

By ballot . 5 2 

Persons attending, exempt from arrest. 6 3 

For county officers, when held. 10 2 

Township officers, when held. 10 4 

For members of the general assembly, when held... ‘2 2 

Of members of the general assembly, each house to be judge of. 2 6 

Of executive officers, when held. 3 1 

On question of combining common pleas and probate courts, or separating them.. 4 7 

On question of constitutional convention . 16 3 

Returns of . 3 3, 4 

First, for members general assembly. Sched. 2 

First, for executive officers. Sched. 3 

First, for judges and clerks. Sched. 4 

To adopt constitution . Sched. 17 

Concerning license to sell liquor. Sched. 18 

Returns of — 

for executive officers. 3 3, 4 

for judges and clerks. Sched. 15 

district, where sent. Sched. 16 

Time for holding . 17 1 

Elective Franchise — 

Who may be excluded. 5 4 

Electors—(S ee Residence.) 

Who are . 5 ] 

Who are not. 5 5 ^ g 

Privileged from arrest, when. 5 ’3 

Persons other than, not eligible to office. 15 4 

























































INDEX TO THE CONSTITUTION OP OHIO, 1851 . 


315 


Eligibility — ^See Residence.) 

Who not eligible to seat in general assembly. 

Embezzlement works ineligibility to office. 

Persons holding public funds not eligible to legislature 

Members of legislature ineligible, when. 

Who may not execute office of governor. 

Judges ineligible to other office. 

Conviction of certain crimes works ineligibility, etc_ 

Of sheriffs and county treasurers, limitation. 

Electors onlv eligible to office. 

Duelists ineligible to office.. 

Embezzlement — 

Of public funds disqualifies for office. 

Emergency Measures — 

Method of enactment . .. 

Take effect, when . 

Referendum not permitted . 

Eminent Domain— 

Compensation in money, when made . 

Right of way . 

Emoluments — 

Hereditary, shall not be granted. 

When increased, who ineligible to office. 

Employes — 

Minimum wages . 

Hours of labor on public work. 


Equity and Law — 

Distinction between, abolished. 

Errors — 

In instruments and proceedings, how cured. 

Estate — 

Not forfeited by crime. 

Evidence — 

Power of committee of each house to enforce production of 
Regulation of evidence in criminal trials. 

Excise Tax — 

Power to levy .. 

Executive Department — 

Of whom to consist.. 

Tie vote for officers of, how decided. 

Vacancies, how filled. 

Officers of, to report to governor. 

Governor may require information of. 

Terms of office.. 

Terms of office.. 

Priming for, how to be done, etc. 


Executive Power — 

Supreme, vested in governor 


Executors — 

Settlement of accounts, and sale of lands. 
Expendititrfs — (See Receipts and Expenditures ) 


Experts— . ■ • , 

Regulations of evidence of experts in criminal 

Extra Compensation — (See Compensation.) 


prosecutions 


Art. Sec. 
2 4 

2 5 

2 £ 

2 19 

3 14 

4 14 

5 4 

10 3 

15 4 

15 6 


2 5 


2 Id 

2 Id 

2 Id 


1 19 

13 5 


1 17 

2 19 


2 34 

2 37 


14 2 


2 28 


1 12 


2 8 

2 39 


12 10 


3 1 

3 3 

3 18 

3 20 

3 6 

3 2 

Sched. 3 

17 2 


3 6 


4 8 


2 39 


F. 


Felony— . 

No exemption from arrest m case of. 

No exemption from arrest in case of.. 

Finance and Taxation — (See Taxation.) .. 

What revenue to be provided.... 

Receipts and expenditures to be published 

Fines— . . , 

Excessive, shall not be imposed. 


Forestry — . . 

Laws to be passed encouraging. 

Forfeiture — . , , 

Of estate, not worked by conviction, etc 


Forms of Actions— • 

To be abolished, if 

Franchise Tax — 

Power to levy . . . . 


2 12 
5 3 

12 

12 4 

15 3 

1 9 

2 3B 

1 12 

14 2 

12 10 


Freedom — 

Of speech and press.. 

Of speech, to members of legislature 


1 11 
2 12 





















































INDEX TO THE CONSTITUTION OP OHIO, 1851. 


ol6 


G. 

Gas — Art. Sec. 

Tax on production of . 12 10 

General Assembly—(S ee House of Representatives; Senate.) 

Right of people to petition. 1 3 

Power to suspend laws possessed only by. 1 18 

Legislative power of state vested in. 2 1 

Initiative and referendum in legislation.Art. 2, Secs. 1, la, lb, Ic, Id, le. If, Ig 

Holders of public money not to have seat in, until. 2 6 

Power of committees . 2 8 

Proceedings to be public, except. 2 la 

Veto power of governor over acts of. 2 16 

Regular session, to commence, when. 2 25 

Not to exercise appointing power, except. 2 27 

Not to pass retroactive laws. 2 28 

Not to pass laws impairing contracts. 2 28 

Can make no extra compensation, etc. 2 29 

Shall grant no divorce. 2 32 

Shall exercise no judicial power, except. 2 32 

Joint convention to count votes. 3 3 

To decide tie vote for state officers. 3 3 

When no session after general election. 3 4 

Governor’s message to . 3 7 

Governor may call extra session of. 3 8 

Limitation upon business at special sessions. 3 8 

Power of, in case of sentence for treason. 3 11 

Governor to transmit reports to. 3 20 

May increase or diminish judges and districts. 4 15 

May change judicial districts. 4 15 

May establish other courts. 4 15 

May remove judges. 4 17 

May provide for commission to aid supreme court. 4 21 

Power as to forfeiture of office, etc. 6 4 

Shall provide for support of schools. 6 2 

Not to authorize counties, etc., to raise money for joint stock companies, etc. 8 6 

Duty of, as to sinking fund. 8 9 

To provide for safe-keeping of public arms. 9 6 

To provide for county and township offices. 10 1 

Apportionment for members of.. 11 1-11 

Shall .pass no special act of incorporation. 13 1 

Shall provide for appointment of commissioners to reform laws. 14 1 

Its powers and duties as to adjournment. 2 14 

To fix term and compensation of officers. 2 20 

Contested elections . 2 21 

Appropriations ... 2 22 

Impeachment . 2 23, 24 

New counties . 2 30 

Sinking fund . 8 9 

Taxation and revenue. 12 1-6 

Creating corporations . 13 1-7 

Municipal corporations . 13 6 

Banking powers . 13 7 

Of bill, etc. (see Bills) . 2 15, 16 

To attach new counties to judicial districts. 11 13 

May call constitutional convention. 16 2 

Members — 

right of people to instruct. 1 3 

elected biennially . 2 2 

qualifications of . 2 3-6 

term of office. 2 2 

privileged from arrest. 2 12 

compensation . 2 31 

no perquisites allowed . 2 31 

first election for. Sched. 2 

any, may protest. 2 10 

General Assembly Members — 

vacancy, how filled . 2 It 

may be punished or expelled. 2 8 

majority of, constitutes quorum. 2 6 

less than a majority may compel attendance. 2 6 

who ineligible . 2 4, 5 

less than a majority may adjourn from day to day. 2 6 

when not eligible to other office. 2 19 

General Assembly — 

Each house to determine the qualifications of own members. 2 6 

“ to choose own officers. 2 8 

“ to determine own rules . 2 8 

“ may expel members . 2 8 

“ to keep a journal. 2 9 

“ to enter yeas and nays on the passage of every bill. 2 9 

“ bills may originate in. 2 15 

“ may propose amendments to constitution. 16 1 

Government -- 

Instituted to protect people. 1 2 

People may change . 1 2 

Seat of, at Columbus. 15 i 




















































































INDEX TO THE CONSTITUTION OP OHIO, 1851. 


317 


Governor — 

How and when chosen . 

One of executive department. 

Term of office. 

Term of office. 

When to declare results of state election 

Supreme executive power vested in. 

Message of, to general assembly. 

Custodian of seal of state. 

When lieutenant-governor to act as. 

When president of senate to act as. 

When speaker of house to act as. 

Reports to accompany message of. 

Who ineligible . 

Vacancy in office, how filled. 

Powers and duties as to — 
appointments . 

4t 


powers and duties as to appointments. 

commuting punishments .. 

pardons . 

veto of bills by.. 

May require information of executive department. 

Execution of laws .. 

To appoint commission to aid supreme court.. 

To fill vacancies in supreme court commission. 

Directors of public institutions. 

Directors of public institutions. 

Fixing ratio of representation . 

Sinking fund . 

Proclamation as to result of election on adoption of constitution 

To continue in office until, etc. 

Legislature — 

convening . 

adjourning . 

giving information to. 


i$ a 

transmitting reports to. 

reporting pardons granted .. 

recommending measures to. 

Militia — 

commander-in-chief . 

appointing staff . 

commissioning officers .. 

calling out . 

Commissions — 

signing ... 

of militia officers . 

of judges . 

of clerks . 

Grand Jury —(See Indictments.) 

Grants — 

Signed bv governor. 

Countersigned by secretary of state 
Sealed with great seal . 


Great Seal — 

Required to be kept by governor. 


Art. Sec. 

8 1 

3 1 

3 2 

17 2 

3 4 

3 6 

3 7 

3 12 

3 15 

3 17 

3 17 

3 20 

3 14 

3 15-17 

3 18 

17 2 

4 13 

4 21 

7 3 

7 2 

3 11 

3 11 

2 16 

3 6 

3 6 

4 21 

4 21 

7 3 

7 2 

11 11 

8 9-11 

Sched. 17 

Sched. 3 

3 8 

3 9 

3 11 

3 7 

3 20 

3 20 

3 11 

3 7 

3 10 

9 3 

9 4 

9 4 

3 13 

9 4 

Sched. 15 

Sched. 15 


3 13 

3 13 

3 13 


3 12 


Grievances — 

Petition for redress of 


Guardians — 

Appointment of . ^ 

Settlement of accounts, and sale of land. 4 


H. 


Habeas Corpus — 

Writ of. not suspended, unless. 1 8 

Jurisdiction of supreme court in. 4 2 

jurisdiction of circuit court in. 4 6 

Jurisdiction of probate court in. 4 8 

Hamilton County — 

First judicial district. H 12 

May have separate courts at same time. 11 12 

First senatorial district . ii 7 

Entitled to three senators. 11 7 

Entitled to seven representatives.^. Sch^d. 1^ 

One additional one for four sessions. Sched. 19 


Happiness — 

Right to seek and obtain 







































































318 


INDEX TO THE CONSTITUTION OF OHIO, 1851. 


Health — Art. S«‘c. 

Laws to be passed protecting health of employes.... 2 34 

Hereditary Honors — 

Never granted . 1 17 

Hours of Labor — 

On public work . 2 37 

House of Representatives — (See General Assembly.) 

How organized . 2 7 

When speaker of, to act as governor. 3 17 

Has sole power of impeachment. 2 23 

Apportionment for members of. 11 1-6 

Apportionment for members of. 11 10 

Apportionment for members for first decennial period. Sched. 19 


I. 

Idiots — 

Shall not be electors. 

Immunities — 

Repealable . 


Impairment — 

Of obligation of contract. 

Impeachment — 

What officers subject to. 

For what offenses . 

House to have sole power of. 

Tried bv senate . 

Two-thirds to convict. 

F.ffect of judgment . 

Not a bar to proceedings at law. 

No pardon by governor in case of... 
Of governor or lieutenant-governor. 

Imprisonment — 

For debt, not allowed unless. 

Improvement — 

JFublic, slate not to contract debt for 
Income Tax — 

Power to levy . 

Graduation of . 

Distribution of . 

Indictments — 

Mecessary to prosecute, except. 

How they shall conclude . 

Orticers liable to, alter impeachment. 

Inheritance Tax — 

Power to levy. 

Graduation of . 

Distribution of . 

Initiative and Referendum — 

Provisions concerning. 

Insane- (See Public Institutions.) 

Shall not be electors .. 

Institutions for benefit of. 

Institutions— (See Public Institutions.) 


5 6 


1 2 

13 2 


2 28 


2 24 

2 24 

2 23 

2 23 

2 23 

2 24 

2 24 

3 11 

3 15, 16 


1 15 


12 6 


12 8 

12 8 

12 9 


1 10 

4 20 

2 24 


12 7 

12 7 

12 9 


Art. 2, Secs. 1, la, lb, Ic, Id, le. If, Ig 


6 6 

7 1 


Instructions — 

To representatives may be given. 1 3 

Instruments of Writing — 

Defects, etc., in, may be cured, and how. 2 28 

Insurance — 

Employes state insurance fund. 2 35 

Public buildings may be insured in mutual insurance companies. 8 6 

Regulation of insurance rates. 8 6 

Insurrection — 

Habeas corpus may be suspended, in case of. 1 d 

State may contract debt to suppress. 8 2 

State may assume debt on account of. 8 6 

Governor may call militia to suppress. 9 4 

Interest — 

On state debt, means to pay, must be provided. 12 4 

Internal Improvements — 

State not to contract debt for, except. 12 6 


















































318a 


INDEX TO THE CONSTITUTION OP OHIO, 1851. 


Intoxicating Liquor — 

License to traffic in 


Invasion — 

Habeas corpus may be suspended in case of. 

State may contract debt to repel. 

State may assume debt on account of. 

Governor may call militia to repel. 

Involuntary Servitude — 

Not allowed, except for punishment of crime 

Irreducible Debt — 

Of state, of what to consist, etc. 

means to pay interest, to be provided. 


Art. See. 
15 9 


1 8 

8 2 

8 5 

9 4 


1 6 


0 1 

12 4 


Jeopardy — 

None to be twice in, for same offense. 1 

Joint Convention — 

Of house and senate, to count votes. .... 3 

Joint Resolutions — (See Resolutions.'^ 

How and when to be signed . 2 

Joint \^ote— 

Of houses of general assembly, when . 3 

Journal — 

Of each house — 

to be kept . 2 

to be published . 2 

yeas and nays to be entered on. 2 

protest, etc., of member to be entered on, etc. 2 

printing of, provided for. 15 

proposed amendment to constitution to be entered on. 10 

Judges — 

First election for. when held. Sched. 

Continuance in office . Sched. 

Election returns, how made . Sched. 

Not provided for in constitution, election and term. 4 

Number, how increased or diminished. 4 

Office, not to be vacated. 4 

How removed . 4 

Jurisdiction at chambers . 4 

Term of . 17 

Vacancy, how filled . 4 

Of the supreme court — 

their number . 4 

quorum . 4 

how elected . 4 

compensation . 4 

not to hold other office. 4 

shall receive no fees or perquisites. 4 

term of . 17 

votes for, when void . 4 

Of court of appeals— 

how elected . 4 

term of office . 4 

number of terms to be held. 4 

Common Pleas — 

how elected . 4 

shall reside in county. 4 

term of office . 4 

term of office . 17 

compensation . 4 

not to hold other office . 4 

shall receive no fees or perquisites . 4 

votes for. when void. 4 

Probate judpe — 

how elected . 4 

term of office . 4 

term of office . 17 

compensation . 4 

Judicial Districts — 

Common pleas district to consist of county. 4 

How changed . 4 

Designated . 11 

New counties to be attached to. H 

Election returns, where sent. Sched. 

Judicial Power — 

Where vested . 4 

Not to be exercised by general assembly, except. 2 

May be conferred upon county officers in registration of land titles. 2 


10 

8 

17 

3 


9 

0 

9 

10 

2 

1 


4 

4 

15 

10 

15 

15 

17 

18 
2 

13 

2 

2 

2 

14 
14 
14 

2 

14 

6 

6 

6 

3 

12 

12 

2 

14 

14 

14 

14 

7 

7 

2 

7 


3 

15 
12 
13 

16 


1 

32 

40 
































































318b 


INDEX TO THE CONSTITUTION OP OHIO, 1851. 


Jurisdiction— Art. Sec. 

Of supreme court . 4 2 

Of court of appeals . 4 6 

Of common pleas . 4 4 

Of probate court . 4 8 

Of justices of the peace. 4 fl 

Of courts of conciliation . 4 19 

Of supreme court commission . 4 21 

At chambers . 4 18 

Jurisprudence — 

Commissioners appointed to reform practice. 14 1 

Jury—(S ee Trial.) 

Trial by, inviolate. 1 6 

Right of accused to trial by. 1 lO 

To assess compensation for private property taken for public use. 1 19 

To ascertain compensation for private property taken by corporation. 13 6 

Justice — 

Administered without delay . 1 16 

Justices of the Peace — 

May be member of general assembly. 2 4 

Number and election . 4 9 

Term of office. 4 9 

Term of office . 17 2 

Powers and duties . 4 9 

How removed . 10 6 

When elected . 10 4 

To continue in office, until, etc. Sched. 7 


K. 

Knowledge — 

Essential to good government. 1 7 


L. 

Labor — 

Hours of labor on public work. 2 37 

Land Office — 

Register and receiver of, to continue, until.. Sched. 6 

Lands —■ {See also Fublic Lands.) 

Registration of title of lands. 2 40 

Initiative and referendum not to be used to provide for single tax. 2 le 

Law and Equity — 

Distinction between, to be abolished. 14 2 

Laws — 

Initiative and referendum.Art. 2, Secs. 1, la, lb, Ic, Id, le. If, Ig 

Restraining liberty of speech, etc., not to be passed. I ll 

How suspended . 1 18 

By whom to be passed .; 2 .9 

Member of legislature may protest against passage of. 2 10 

How revived or amended. 2 16 

Style of . 2 18 

Of a general nature, with uniform operation . 2 26 

Retroactive, not to be passed. 2 28 

Impairing contracts, not to be passed. 2 28 

Subject to approval of general assembly only, except. 2 26 

Governor shall see to execution of. 3 6 

Governor may call militia to execute. 9 4 

Levying a tax, shall state its object. 12 6 

To be published . 15 2 

Conferring banking powers, how approved. 1.1 7 

Corporations to be created by general. 13 2 

Corporations to be created by general. 13 6 

No special, creating corporaGons, to be passed. 13 1 

In force, to continue . Sched. 1 

Legislative Documents — 

Printing of, provided for. 15 2 

Legislature.— (See General Assembly.) 

Libel — 

In criminal cases, truth may be given in evidence. 1 ii 

Liberty — 

Right of enjoying and defending. 1 i 

.Standing armies dangerous to, in times of peace. 1 4 

Of speech and press . 1 1) 
























































INDEX TO THE CONSTITUTION OP OHIO, 1851. 


319 


Librarian — Art. Sec. 

State, to continue in office. Sched. 6 

License — 

Marriage, probate judge to issue. 4 8 

Intoxicating liquor, shall be granted to traffic in. 15 9 

Lien, Mechanics— 

Power to provide for not restricted by other constitutional provisions. 2 33 

Lieutenant-Governor — 

One of executive department. 3 i 

When and how chosen. 3 1 

Term of office. 3 2 

Term of office. 17 2 

To act as governor, when. 3 15 

To be president of senate. 3 16 

Shall only vote when a tie. 3 16 

Vacancy, how filled. 3 16, 17 

Life — 

Right to enjoy and defend. 1 1 

Liquor — 

License to traffic in. 15 9 

License to sell under former provision. Sched. 18 

Assembly may provide against evils resulting from traffic in. Sched. 18 

Lot — 

In case of tie vote for state executive officer. 3 3 

Lotteries — 

Forever prohibited . 15 6 

Sale of tickets of, prohibited. 15 6 

Lunatics— (See Public Institutions.) 

Shall not be electors. 5 6 

Institutions for benefit of. 7 '1 


M. 


Majority — 

Of members in each house a quorum. 2 6 

Of all, necessary to pass a law. 2 9 

Mandamus — 

Jurisdiction of supreme court in. 4 2 

Jurisdiction of circuit court in. 4 6 

Marriage License — 

To be issued by probate court. 4 8 


Mechanics' Liens — 

Power to provide for not restricted by other constitutional provisions. 2 33 

Members of Congress — 

Not to be governor. 3 14 


Members of General Assembly — (See General Assembly.) 


Merit System — 

To obtain in appointment 


15 10 


Military— _ , 

Subordinate to civil power. * 

Standing armies dangerous in time of peace. 1 


Militia — 

Where may not be quartered. 

Governor, commander-in-chief. 

Who enrolled in . 

Officers of — 

eligible to seat in general assembly. 

what and how elected.. 

what and how appointed . 

how commissioned . 

their duties . 


1 13 
3 10 
9 1 

2 4 
9 2 
9 3 

9 4 
9 4 


Minerai.s — 

Tax on production of 


12 


10 











































320 


INDEX TO THE CONSTITUTION OF OHIO, 1851. 


Wage — 

Legislature may establish 

Miscellaneous Items .. 

Miscellaneous Items . 


Money — 

Power of municipal corporations to borrow. 

Public, embezzlement of, a disqualification for office 

Holders of, ineligible to seat in legislature. 

How drawn from state treasury. 

How drawn from county or township treasury. 

Arising from state debt, how applied. 

Receipts and expenditures of, to be published. 


Morality — 

Essential to good government 


Municipal Corporations — 

Classification of municipal corporations. 

To be created and organized under general laws. 

Additional laws to be submitted to electors. 

Powers . 

Public utilities. 

Referendum on question of public utilities . 

Sale of surplus production of public utilities. 

Charters, adoption and amendment of.. 

Appropriation of property in excess of public use. 

Assessment for expense of appropriating property. 

Ronds for public utilities. 

Limitation upon power of taxation. 

Reports . 

Examination of accounts. 

Election . 

May insure public buildings in mutual insurance companies 

Initiative and referendum provisions . 

City or town not to be divided in forming new county. 

State not to assume debt of, unless. 

Not to own stock in private corporation. 

Not to aid private corporation. 

Organization of, and powers to be restricted.. 

Officers of, term, etc. 


Art, Sec, 

2 34 

Sched. 

15 1-7 


13 B 

2 6 

2 6 

2 22 

10 6 

8 1 , 2 
15 1 


1 7 


........ 18 , 1 

. 18 2 

. 18 2 

18 3 

Art. 18, Sec. 4 et secj. 

. 18 5 

. 18 6 

. 18 7, 8, 9 

Art. 18, Sec. 10 et seq. 

. 18 11 

. 18 12 

. 18 13 

. 18 13 

. 18 13 

. 18 14 

. 8 6 

. 2 If 

. 2 30 

. 8 6 

. 8 6 

. 8 6 

. 13 6 

. 17 2 


N. 

National Convention — 

Delegate to national convention chosen by direct vote. 5 7 

Natural Resources — 

Conservation of . 2 36 

.New Counties — (See Counties.) 

Nominations — 

For certain offices to be at direct |)rimary elections or by petition. 5 7 

Ry governor, entered on journals. 7 2 

Question on, how taken. 7 

Of members of constitutional convention. 16 2 

Notaries Public — 

Eligible to seat in general assembly. 2 4 


o. 

Oaths — 

Not dispensed with . 1 7 

To be taken by officers. 15 7 

What to contain . 15 7 

Obligation — 

Of contract not to be impaired. 2 28 

Offenses— fSee Crime.) 

Inferior, indictment not required in case of. 1 10 

Office— (See Eligibility.) 

No religious test required for. 1 7 

None holding, eligible to legislature. 2 4 

Holders of public money not eligible to seat in legislature. 2 6 

Removal from . 2 38 

Legislature to fix term of, except. 2 20 

Supreme or common pleas judge can hold no other. 4 14 

What disqualifies for. 2 4 

“ " . 2 5 

“ " . 2 19 

“ . 2 24 































































INDEX TO THE CONSTITUTION OP OHIO, 1851. 


321 


Officers—(S ee Eligibility.) 

Each house to choose its own. 

Presiding, of each house, to sign bills. 

Certain, not eligible to seat in general assembly..... 

Legislature to fix compensation of, except. 

May be impeached . 

Appointment of, how made. 

Not to have extra compensation. 

Municipal, terms of . 

Of militia, how elected . 

Of militia to appoint staff. 

Of county and township, how removed. 

Of county and township, powers of . 

Of county and township, how elected. 

Of county, when elected. 

Of county, when elected. 

Of county, term of office. 

Of county, term of office. 

Of township, eligible to seat in general assembly_ 

Of township, when elected . 

Of township, term of office. 

Of township, term of office. 

To take an oath. 

Must be electors . 

Appointments to be made on basis of merit. 

Continuance in office. 

Continuance in office. 

Vacancies, how filled. 

Vacancies, how filled. 

May be indicted . 

Certain, can not be governor. 

Certain, to report to governor. 

School, term of. 

State executive . 

“ “ how and when chosen. 

“ “ how and when chosen. 

" “ term of office of. 

“ “ term of office of. 

** “ how tie vote for, decided. 

State executive, returns of election of. 

“ “ how vacancies filled. 

" “ how vacancies filled. 

“ ** compensation of . 

“ “ reports of . 

*' “ first election for . 

“ “ continuance in office . 

Offices — 

What ones members of general assembly ineligible to. 

What, not held by governor. 

What, not held by members of assembly. 

Election and appointment to. 

Term of, fixed by law. 

Oil — 

Tax on production of. 

Omissions — 

In instruments and proceedings, how cured. 

Organi7atton — 

Of house of representatives . 


Art. Sec. 

2 8 

2 17 

2 4 

2 20 

2 24 

2 27 

2 29 

17 2 

9 2, 3 

9 3 

10 6 

10 7 

10 1 

10 2 

17 1 

10 2 

17 2 

2 4 

10 4 

10 4 

17 2 

15 7 

15 4 

15 10 

Sched. 3, 5, 7 
Sched. 10 

Sched. 8 

17 2 

2 24 

3 14 

3 20 

17 2 

3 1 

3 1 

17 1 

3 2 

17 2 

3 3 

3 3, 4 

3 18 

17 2 

3 19 

3 20 

Sched. 3 

Sched. 3, 5 

2 19 

3 14 

2 4 

2 27 

9 an 


12 10 


2 28 


2 7 


P. 

Pardons — 

Granted by governor. 

Reported to assembly. 

By general assembly, in case of treason.. 

Peace — 

Breach of. no exemption from arrest in case of 
Breach of, no exemption from arrest in case of 

Standing armies dangerous in time of. 

Penalty — 

Of conviction on impeachment. 

Penitentiary — 

Officers of, how elected. 

Officers, continued until. 

People —(See Rights.) 

May change government . 

May assemble to consult... 

May assemble to instruct representatives. 

May petition . 

May bear arms .. 

Rights protected . 

Rights retained . 

Political power in. 

Perjury — 

What may be forfeited by. 


3 11 

3 11 

3 11 

2 12 

5 3 

1 4 


2 24 


7 2 

Sched. 6 


1 2 

1 3 

1 3 

1 3 

1 4 

1 14 

1 20 

1 2 


5 4 












































































822 


INDEX TO THE CONSTITUTION OP OHIO, 1851. 


Perquisites— Art. Sec. 

None allowed to members of assembly. 2 31 

None allowed to judges. 4 14 

Petition — 

To general assembly, for redress . 1 8 

Form of petition, for initiative and referendum.. . . . 2 Ig 

Legislation initiated by petition. 2 la, lb 

Petit Larceny — 

Indictment not required in case of. 1 

Pleading — 

Revision, etc., of, provided for. 14 2 

E’olitical Power — 

Inherent in the people. 1 2 

Poll Tax — 

Not for county or state purposes. 12 1 

Service required not to be commuted in money. 12 1 

Population — (See Census.) 

Ratio of, for representation. 11 If 2 

Ratio of, for representation. 11 3, 4, 5 

Ratio of, for representation. 11 10 

Ratio of, senators. 11 6 

Increase of, how apportioned. 11 9 

Postage — 

Not allowed to members of assembly.;. 2 31 

Powers — 

Political power inherent in the people. 1 2 

Not delegated, remain with people. 1 20 

J^egislative, where vested . 2 1 

Executive, where vested . 3 1 

Executive, where vested . 3 6 

Judicial, where vested . 4 1 

Practice — 

Revision, etc., of, provided for. 14 2 


President of Senate —(See Lieutcnant Governor.) 

To open and publish election returns. 

Lieutenant-governor shall be. 

Pro tern., when chosen. 

When to act as governor. 

Press — 

Liberty of, protected. 


Printing — 

Of laws, etc. 16 2 

Prison Made — 

Lab^l required upon convict-made goods. 2 41 

Private Property—(S ee Property.) 

Inviolate . 1 19 

Subservient to public welfare. 1 19 

When taken, how paid for. 1 i 9 

When taken by corporation, how paid for. 13 6 

Privileges — 

Special, if granted, may be revoked, etc. 1 2 

Hereditary, shall not be granted. 1 17 

Of persons, protected . 1 14 

Probate Court — 

To be established in each county. 4 7 

A court of record . 4 7 

Open at all times. 4 7 

Combined with common pleas court or separated therefrom, when. 4 7 

Jurisdiction . 4 8 

Judge of . 4 7 

Clerk . 4 16 

Successor of common pleas, as to probate business. Schcd. 14 

Procedure — 

In courts of record, revision, etc., of, provided for. 14 2 

Process — 

Compulsory, to procure attendance of witnesses. 1 10 

Style of . 4 20 

Property — 

Right to acquire, possess, and protect. 1 1 

Private, inviolate . 1 19 

Subservient to public use. 1 i 9 

How taken for public use. 1 19 

How taxed . 12 2 

Public, may be exempted from tax. 12 2 

Private, what amount may be exempted from tax. ]> 2 

Exempt from tax, value to be ascertained, etc. 12 2 

Of banks, how taxed . 12 3 

Of corporations, how taxed . 13 4 

How taken for use of corporation. 13 5 


3 3 

3 16 

3 16 

3 17 

1 11 































































INDEX TO THE CONSTITUTION OP OHIO, 1851. 


323 


Prosecution — 

How carried on . 

Protest — 

Any member may . 

Entered on journal. 

Public Arms— (See Arms.) 

General Assembly shall provide for safe-keeping of. 

Public Charity — 

Institutions of, may be exempt from taxation. 

Public Contract — 

Hours of labor on public work. 

Public Funds— (See Money.) 

Public Improvements — 

State not to create a debt for. 

Public Institutions — 

Officers of, to report to governor. 

Officers of, how appointed. 

Officers of, to continue in office until. 

\ acancies, how filled ... 

For insane, etc., to be fostered... 

Public Instruction — 

Superintendent of . 

Public Lands — 

Granted for school and religious purposes, funds arising from sale of 
Public Money —(See Money.) 

Public Printing — 

Provisions concerning . 

Public Roads— (See Roads.) 

Public Safety — 

In case of rebellion or invasion. 


Public Welfare — 

Private property subservient to 


Public Works— (See Superintendent of Public Works.) 

Net income of, to go to sinking fund. 

Hours of labor on public work. 

Control of by superintendent. 


Public Worship — 

Houses for, may be exempted from taxation 


Punishment — 

Cruel, not to be inflicted 


Art. Sec. 

4 20 


2 10 
2 10 


9 6 


12 2 


2 37 


12 6 


3 20 

7 2 

Sched. 5 

7 8 

7 1 


6 4 


6 1 


15 2 


1 8 


1 19 


8 7 

2 37 

8 12 


12 2 


1 • 



Quorum — 

Majority of members elected, to constitute. 2 6 

Of supreme court . 4 2 

Of supreme court commission . 4 21 

Quo Warranto — 

Jurisdiction of supreme court in. 4 2 

Jurisdiction of circuit court in. 4 6 


R. 

Rebellion — 

Privilege of writ of habeas corpus may be suspended in case of. 1 

Receiver of Land Office — 

Continued in office until. Sched. 

Receipts and Expenditures — 

Statement of, to be published. 15 

Referendum — 

Provisions concerning.Art. 2, Secs. 1, Ic, Id, le. 

Register of Land Office — 

Continued in office until. Sched. 

Registration — 

Of land titles . 2 


Religion and Morality —(See Public Worship.) 

Essential to good government. 1 

All denominations of, protected. 1 

Funds for, to be preserved. 6 

Religious Sects — 

None to have exclusive right to school fund. 6 

All to be protected. 1 


8 

5 

8 


H) Ig 

6 

40 

7 

7 

1 


2 

7 










































824 


INDEX TO THE CONSTITUTION OF OHIO, 1851. 


Religiovs Tests— Art. Sec. 

None required as qualification for office. 1 7 

Or as a qualification as a witness. 1 7 

Remgious Society — 

None preferred . 1 7 

Removal from Office — 

Provision to be made for. 2 28 

Repealed Laws . 2 16 

Reporter of Supreme Court — 

To be reporter of supreme court commission. 4 21 

Reports — 

Of executive officers, governor may require. 3 6 

Of executive officers and state institutions. 3 20 

Decisions of supreme court and court of appeals. 4 6 

Of property exempt from taxation. 12 2 

Of commissioners of jurisprudence. 14 3 

Representative Districts — 

What counties constitute. Scbed. 19 

Election returns, when counties joined in. Scbed. 16 

Reprieves — 

Allowed by governor, when. 3 11 

By general assembly, in case of treason. 3 11 

Representation— (See Apportionment.) 

Representatives — (See General Assembly; House of Representatives.) 

Residence — 

Of members of general assembly. 2 3 

Of judges of common pleas. 4 12 

Of electors . 6 1 

Who are not residents. 6 6 

Resolutions — 

Members of general assembly may protest against. 2 10 

Joint, how and when to be signed. 2 17 

Retroactive Laws—(S ee Laws.) 

General assembly, no power to pass. 2 28 

Revenue — 

What to be raised. 12 4 

Rights—(S ee Bill of Rights.) 

Inalienable . 1 1 

Of conscience, not to be interfered with. 1 7 

Not delegated, retained by people. 1 20 

Of persons — 

bill of . 1 

to speak, write, etc. 1 11 

to worship God . 1 7 

accused of crime. 1 10 

against unreasonable search and seizure. 1 14 

Right op Way — 

How appropriated . 13 6 

Roads — 

Compensation for private property taken for. 1 19 

Shall be open to the public without charge. 1 19 

Rules — 

Each house of legislature to determine. 2 8 

Constitutional, may be dispensed with, and how. 2 16 

s. 

Safety — 

Right to seek and obtain . 1 1 

Public, in case of rebellion or invasion. 1 g 

Salary—(S ee Compensation.) 

Not changed . 2 20 

Of members of legislature. 2 81 

Of executive officers . 3 19 

Of judges . 4 14 

Of officers not provided for. 2 20 

Sale — 

Power of Legislature to regulate . 13 2 

Schedule — 

Of constitutional amendments submitted September 3, 1912.Scbed. [20J 

School Funds — 

From sale of lands granted for schools. 6 1 

No sect shall have control of. 6 2 

School Houses — 

May be exempted from taxation. 12 j 

School Lands— ^ 

Granted to state, funds arising from sale of. 6 1 




















































IXDEX TO THE CONSTITUTION OP OHIO, 1851. 


325 


School Officers — 

Terms of . 

Schools — 

To be encouraged. 

Acts relating to, may be submitted to electors 

Funds to be kept inviolate. 

Common, to be provided for... 

Regulation of public school system of state 

Power of city school districts. 

Superintendent of public instructions. 

Seal of the State — 

Kept by governor. 

Searches — 

Unreasonable, not made. 

Search Warrants — 

How issued . 

Requisites . 

Seat of Government — 

Established in Columbus. 


Secrecy — 

Of proceedings in general assembly, when 

Secretary of State — 

One of executive department. 

How and when chosen. 

Term of office . 

Term of office.. 

When election returns made to.. 

Shall countersign grants and commissions 

Vacancy, how filled.. 

Commissioner of sinking fund.. 

With governor, etc., to fix representation.. 

Bureau of statistics in office of. 

Open election returns . 

Seizures — 

Unreasonable, not allowed . 


Senate —(See General Assembly.) 

To try impeachment . 

Two-thirds must concur. 

On oath . 

Duties of president of, as to certain election returns 
When equally divided, lieutenant-governor may vote 

When to choose president pro tern. 

When president of, to act as governor.. 

Appointments confirmed by . 

Appointments confirmed by .. 

Ratio apportionment for.. 


Senatorial Districts — 

Ratio for, how fixed.. 

State divided into thirty-three . 

Each district one senator. 

First district three .. 

Annexation of .. 

Fractions, apportioned for senators 
Increase, apportioned for senators.. 

Territory to remain ten years. 

Election returns, where sent.. 


Senators of U. S. — 

To be voted for viva voce. 

Preferential vote for. 

Sessions of General Assembly — 

Biennial . 

When to commence . 

First session . 

Servitude — 

No involuntary, except. 

Sheriff — 

Eligible only four years in six. 

How and when elected . 

Term of office. 

How removed . 

Single Tax — 

Initiative and referendum not to be used to establish 
Sinking Fund — 

Certain debts payable from. 

How created . 

Sufficient for what purposes . 

Commissioners of . 

Raising and disbursement of . 

How applied . 

Necessity of providing . 


Art. Sec. 
17 i 


1 7 

2 26 

6 1 

6 2 

6 3 

6 3 

6 4 


3 12 


1 14 


1 14 

1 14 


15 1 


2 13 


3 1 

3 1 

3 2 

17 2 

3 4 

3 13 

3 18 

8 8 

11 11 

15 8 

Sched. 15, 17 


1 14 


2 23 

2 23 

2 23 

3 3 

3 16 

3 16 

3 17 

7 2 

4 21 

11 6 


11 6 

11 7 

11 7 

11 7 

11 8 

II 8 

11 8 

11 10 

Sched. 16 


2 27 

5 7 


2 25 

2 25 

2 25 


1 6 


10 3 

10 2 

10 2 

10 6 


le 


8 2 

8 7 

8 7 

S R 

8 0 

0 ID 

12 11 


































































INDEX TO THE CONSTITUTION OP OHIO, 1851. 


:i26 


Slavery — Art. Sec. 

Not allowed in this state. 1 6 

Soldiers — 

How quartered . 1 13 

Speaker of House — 

Shall sign bills . 2 17 

When to act as governor. 3 17 

Special Privileges — 

If granted, may be revoked, etc. 1 2 

Special Session — 

Limitation upon power of Legislature at. 3 8 

Speech — 

Liberty of, protected. 1 11 

Liberty of, protected to members of assembly. 2 12 

Standing Armies — 

Dangerous in time of peace.."7. 1 4 

State—(S ee Debt of State.) 

Suits against . 1 16 

Seal of, to be kept by governor. 3 12 

Shall never assume debt of any county, etc., except. 8 5 

Faith of. pledged to payment of debt..... 8 7 

Credit of, not given to any corporation, etc. 8 4 

Sliall noL become a siockiiolUei. 8 4 

Shall not contract debts for internal improvement except. 12 6 

State Credit — 

For what, not to be given. 8 4 

State Librarian — 

To continue in office, until, etc. Sched. 6 

State Seal — 

To be kept and used by governor. 3 12 

Statistics — 

Bureau of, to be established. 15 8 

Statute — 

Restriction on power of supreme court to declare statute unconstitutional. 4 2 

Stockholders — 

Liability of . 13 3 

Stock in Corporations — 

State, county, etc., not to own.;. 8 4 

Regulation of sale of. 13 2 

Style of Laws . 2 18 

Succession Tax — 

Power to levy . 12 7 

Gradation of .•. 12 7 

Distribution of. 12 9 

Suits — 

Against state . 1 16 

Transfer of, from supreme court to supreme court commission. 4 21 

Not affected by constitution. 4 2 

Pending in court in bank, where transferred. Sched. H 

Suits — 

In common pleas. Sched. IS 

In supreme court . Sched. 12 

In Cincinnati courts . Sched. 6 

In Cleveland courts . Sched. 6 

Superintendent of Public Instructions — 

Appointed by governor . 6 4 

Superintendent of Public Works — 

Appointment and powers. 8 12 

Superior Court: — (See Cleveland Courts; Cincinnati Courts.) 

Supreme Coupt— 

Jurisdiction . 4 2 

Power to declare statute unconstitutional. 4 2 

Restriction on power to make rules. 4 2 

How constituted . 4 2 

Number of judges may be changed, how. 4 15 

Quorum of. 4 2 

Decisions of supreme court to be reported.•. 4 6 

Terms . 4 2 

Disqualification of judge of court of common pleas to be determined by. 4 2 

Disqualification of judge of court of appeals to be determined by. 4 6 

Commission to aid, provided for. 4 21 

Suits in bank, where transferred, etc. Sched. 11 

Supreme court commission, amendment to constitution providing for. 4 21 

Suspending Laws — 

Sole power in general assembly. 1 18 
























































INDEX TO THE CONSTITUTION OF OHIO, 1851. 


327 


T. 

Taxation — 

Single tax not to be enacted by initiative and referendum. 

ror school purposes . 

For sinking fund . 

For police purposes, by counties, townships, etc. 

Fy the poll, not for county or state purposes. 

Service required cannot be commuted in money. 

By uniform rule .. 

Of all property . 

Exemptions from ... 

Of banks .!.!!!!!!!!!!.'! 

Succession tax authorized . 

Inheritance tax . 

Gradation of inheritance tax authorized. 

Income tax .’ ’ [ ’ 

Gradation of income tax authorized. 

Distribution of income and inheritance tax . 

Excise . tax . 

Franchise tax . 

Minerals, tax upon production of. 

Renewal of bonded indebtedness, restriction on. 

Of property of corporations. 

By municipal corporations, to be restricted. 

Taxes — 

Levied by uniform rule. 

What property subject to. 

What property exempt from. 

Only levied by law. 

Tie Votes — 

For state executive officers, how decided. 

In Senate, lieutenant-governor to decide. 

Title — 

Registration of land titles. 

Towns— (See Municipal Corporations.) 

Township Officers— (See Officers.) 

Township Organization — 

Officers — 

when elected .•. 

term . 

how removed .. 

Power of trustees . 

Shall not become stockholder. 

Shall not raise money for corporations, etc. 

Townships — 

State not to assume debt of, unless. 

Not to own stock in corporation. 

Not to aid corporation . 

May insure public buildings in mutual insurance companies 

Township Trustees—(S ee Officers.) 

Taxation by, for police purposes. 

Transported — 

No person to be, for crime. 

Treason — 

No pardon by governor in case of. 

Power of governor, after conviction for. 

Authority of general assembly in case of. 

No exemption from arrest in case of. 

No exemption from arrest in case of. 

Treasurer of County—(S ee Officers.) 

Eligible only four years in six. 

Treasurer of State—(S ee Officers.) 

One of executive department. 

How and when elected. 

Term of office. 

Term of office. 

Vacancy, how filled. 

Trial— (See Jury.) 

By jury, right of, shall be inviolate. 

By jury, right of accused persons to. 

Of contested elections . 

Trial — 

Of impeachment, by senate. 

Officers impeached, subject to, or indictment. 


Art. 

Sec. 

2 

le 

6 

1 

8 

7 

10 

7 

12 

1 

12 

1 

12 

2 

12 

2 

12 

2 

12 

3 

12 

7 

12 

7 

12 

7 

12 

8 

12 

8 

12 

9 

12 

10 

12 

10 

12 

10 

12 

11 

13 

4 

13 

6 

12 

2 

12 

2 

12 

2 

12 

5 


3 

3 

3 

18 

2 

40 


10 

4 

17 

1 

17 

2 

10 

7 

8 

6 

8 

6 


8 

6 

8 

6 

8 


8 

6 

10 

7 

1 

12 


3 

11 

3 

11 

3 

11 

2 

12 

6 

3 


10 

3 

3 

1 

3 

1 

3 

2 

17 

2 

3 

18 


1 

6 

1 

10 

2 

21 

S 

28 

2 

24 





























































328 


INDEX TO THE CONSTITUTION OP OHIO, 1851. 


Troops —(See Militia; Soldiers.) Sec. 

Trustees of Public Institutions — 

How appointed . 7 2 

Shall continue in office until. Sched. 6 


u. 

United States Senators — 

Vote for, to be taken viva voce. 2 2~ 

Preferential vote for . 5 7 


V. 

Vacancies — 

In general assembly, how filled. 2 11 

In office, how filled. 2 27 

In office, how filled. 17 2 

In office of governor, how filled. 3 15 

In office of lieutenant-governor . 3 16 

In executive office, how filled. 8 18 

In judicial office, how filled. 4 13 

In office of public institutions, how filled. 7 3 

In office of commissioner of jurisprudence. 14 1 

In supreme court commission, how filled. ^ 4 21 

Occurring after September 1 , 1851. Sched. 8 

Verdict — 

In civil cases, what number of jurors may render. 1 5 

Veto — 

Of bills by governor. 2 16 

Villages—(S ee Municipal Corporations.) 

V’OTE — 

For U. S. Senators, how taken. 2 27 

'I'ie, for state executive officers, how decided. 3 3 

Joint, of houses of general assembly, when. 3 3 

When lieutenant-governor may vote. 3 16 

Who entitled to. 6 1 

\’OTES — 

Certain, to be void. 4 14 

Voters—(S ee Electors.) 

X'OTING — 

Who may be excluded from. 6 4 


w. 

Wage, Minimum — 

Power of legislature to fix. 2 34 

War - 

Compensation for property taken in time of. 1 19 

Debt on account of, may be assumed by state. 8 b . 

Warrants—(S ee Search Warrants.) 

Witness — 

None incompetent on account of religious belief. 1 7 

Right of accused to meet, face to face. 1 jp 

When not compelled to testify against himself. 1 JQ 

Depositions in criminal cases. I jq 

Right of state to comment on failure of accused to testify. 1 iQ 

May be compelled to attend. 1 ]0 

Power of committee of each house to compel attendance. 2 8 

Regulation of expert witnesses in criminal prosecutions. 2 39 

Workmen's Compensation — 

Fund to provide for. 2 35 

Worship — 

All persons may, as conscience dictates. 1 7 

Laws to protect. 1 7 

None compelled to support. I 7 

Public, houses used for, may be exempted from taxation. 12 2 


Y. 


Yeas and Nays— 

When to be entered on journal. 2 9 

Taken on appointments to office. 7 2 

On amendments to constitution . 75 j 














































The Constitutions 

OF THE 

United States 

AND OF THE 

State of Ohio 


1913 


Thoroughly Annotated and Indexed 


BY 


WM. HERBERT PAGE 

(Of the Columbus Bar, Professor of Law in the College of Law of The 
Ohio State University, and Author of Page & Adams Anno¬ 
tated General Code of Ohio, Page on Contracts, Page on 
Wills, Page & Jones on Taxation by Assessments) 


CINCINNATI 

THE W. H. ANDERSON COMPANY 
LAW BOOK PUBLISHERS 
1913 



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